Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Posted: March 31, 2014 | Author: Recreation Law | Filed under: Indiana, Legal Case, Release (pre-injury contract not to sue), Sports | Tags: IN, Indiana, Indianapolis, Inherent Risk, Judgment as a matter of law, Magic Words, Minor, Motion (legal), Negligence, parent, Release, Summary judgment, YMCA | Leave a comment

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant, vs. Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson, Appellees-Plaintiffs.

No. 85A05-1203-CT-138

COURT OF APPEALS OF INDIANA

2012 Ind. App. LEXIS 428

August 31, 2012, Decided

August 31, 2012, Filed

PRIOR HISTORY: [*1]

APPEAL FROM THE WABASH CIRCUIT COURT. The Honorable Robert R. McCallen, III, Judge. Cause No. 85C01-1110-CT-839.

COUNSEL: FOR APPELLANT: RANDALL W. GRAFF, ORFEJ P. NAJDESKI, LESLIE B. POLLIE, Kopka, Pinkus, Dolin & Eads, LLC, Indianapolis, Indiana.

FOR APPELLEES: JOSEF MUSSER, Spitzer Herriman Stephenson, Holderead Musser & Conner, LLP, Marion, Indiana.

JUDGES: BROWN, Judge. FRIEDLANDER, J., and PYLE, J., concur.

OPINION BY: BROWN

OPINION

OPINION – FOR PUBLICATION

BROWN, Judge

Wabash County Young Men’s Christian Association, Inc., (“YMCA”) appeals the trial court’s order denying its motion for summary judgment. The YMCA raises one issue which we revise and restate as whether the trial court erred in denying the YMCA’s motion for summary judgment. We reverse.

The relevant facts follow. On October 13, 2011, Taylor Thompson, by next friends Brian Thompson and Charlene Thompson, filed a complaint against the YMCA alleging that she was at the premises known as the Field of Dreams which was owned by the YMCA on May 28, 2009, and was injured when she slid into second base while participating in the Wabash Metro Summer Baseball/Softball League.¹ The complaint alleged that the YMCA was negligent and violated its duty to protect Taylor [*2] 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.” Appellant’s Appendix at 7. The complaint alleged that Taylor suffered serious and permanent physical injury.

1 The complaint indicated that Taylor was seventeen years old at the time of the filing of the complaint.

On November 22, 2011, the YMCA filed a Motion to Dismiss And/Or Change of Venue Pursuant to Trial Rule 12(B)(6). The YMCA alleged that Charlene, Taylor’s mother, executed a contractual document for Taylor’s participation in the Wabash Metro Summer Baseball/Softball League, and the YMCA attached the document to the motion. The form contains the following statement:

I (parent or guardian) Charlene Thompson hereby give permission for Taylor Thompson to participate in Metro League Baseball/Softball. I further understand that injuries can occur and will not hold the field, sponsor, coaching staff or league responsible for injury or medical expenses incurred while participating in practice [*3] or playing in a game. I also affirm that my child is physically fit to participate in athletic activities.

Id. at 12. The YMCA alleged that Taylor contractually agreed that there was an inherent risk to her participation in the softball game that could result in injury and that she contractually agreed that she would hold the YMCA, as alleged owner of the field, harmless for any injuries or medical expenses resulting from such injuries.

On December 22, 2011, Taylor filed a response to the YMCA’s motion to dismiss and argued that “in the case of minors, a person claiming tort damages on behalf of the minor against another person has power to execute a release on the minor’s behalf, however, the release must be approved by the Court before being effective.” Appellant’s Appendix at 14. Taylor also alleged that the document YMCA relies upon did not contemplate an injury from the negligent maintenance of the property, rather, it contemplates the foreseeable injuries which can inherently occur while playing baseball or softball. Taylor argued that the YMCA was not a party to the understanding evidenced by the document.

On December 30, 2011, the court held a hearing on the YMCA’s motion. On [*4] January 18, 2012, the court denied the YMCA’s motion to dismiss. On February 16, 2012, the YMCA filed a motion to certify the interlocutory order, which the court granted on February 21, 2012. On April 16, 2012, this court accepted jurisdiction pursuant to Ind. Appellate Rule 14(B).

The issue is whether the trial court erred by denying summary judgment to the YMCA. Initially, we note that the YMCA’s motion to dismiss was filed pursuant to Ind. Trial Rule 12(B)(6) and attached the form completed by Taylor’s mother. Therefore, we will review the YMCA’s motion to dismiss as a motion for summary judgment. [HN1] See Ind. Trial Rule 12(B) (“If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.”); New Albany-Floyd Cnty. Educ. Ass’n v. Ammerman, 724 N.E.2d 251, 255 n.7 (Ind. Ct. App. 2000) (“Although the trial court specifically granted Holman’s motion to dismiss and did not rule on his motion for summary judgment, we must nevertheless treat [*5] the former as a motion for summary judgment on review.”); Galbraith v. Planning Dep’t of City of Anderson, 627 N.E.2d 850, 852 (Ind. Ct. App. 1994) (treating the trial court’s dismissal of plaintiff’s complaint as a summary judgment for the defendant when plaintiff submitted an affidavit and the trial court acknowledged that it considered matters outside the pleadings).

[HN2] Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. [HN3] Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. [HN4] We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. [HN5] “[A] motion for summary judgment that is unopposed should be granted only if the designated materials, regardless of whether they stand unopposed by materials designated by the nonmovant, warrant it.” [*6] Starks v. Village Green Apartments, 854 N.E.2d 411, 415 (Ind. Ct. App. 2006), abrogated on other grounds by Klotz v. Hoyt, 900 N.E.2d 1 (Ind. 2009).

[HN6] In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 193 (Ind. 2012). [HN7] Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

[HN8] “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.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004). [HN9] In negligence cases, summary judgment is “rarely appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the [*7] objective reasonable person–one best applied by a jury after hearing all of the evidence.” Id. Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff’s claim. Id. at 385.

We initially address Taylor’s argument that while Indiana law requires that a parent claiming tort damages on behalf of a minor against another person has power to execute a release on the minor’s behalf, the release must be approved by the court to be valid. Taylor cites Ind. Code § 29-3-9-7(b) which provides:

[HN10] Whenever a minor has a disputed claim against another person, whether arising in contract, tort, or otherwise, and a guardian for the minor and the minor’s property has not been appointed, the parents of the minor may compromise the claim. However, before the compromise is valid, it must be approved by the court upon filing of a petition requesting the court’s approval. If the court approves the compromise, it may direct that the settlement be paid in accordance with IC 29-3-3-1. If IC 29-3-3-1 is not applicable, the court shall require that a guardian be appointed and that the settlement be delivered to the guardian [*8] upon the terms that the court directs.

Taylor argues that “[n]o Indiana statute, rule, or decision authorizes a parent of a minor to sign a pre-tort waiver.” Appellee’s Brief at 5. Taylor also argues that “the Indiana statute requiring court approval of minor’s claim settlement arises out of a public policy of favoring protection of minors with respect to contractual obligations” and “[t]he statute guards minors against improvident compromises made by their parents.” Id.

The YMCA argues that Taylor’s reliance on Ind. Code § 29-3-9-7(b) “is misplaced and has no bearing on the subject matter at issue in this case, which involves a vastly different legal scenario having nothing to do with probating a disputed claim a minor has against another person.” Appellant’s Brief at 8. The YMCA also argues that if Taylor’s argument is accepted, it would render all releases signed by parents to allow their children to participate in school and sporting events ineffective and meaningless. The YMCA contends that “[i]t would be impossible for parents to obtain court approval for every release or hold harmless agreement for every club, hobby, camp, and sporting activity for each of their children.” Id. at 9.

We [*9] observe that the referenced statute governs a post-injury claim and falls under Title 29, which governs probate law, and not the issue in this case. Further, Taylor does not point to any other authority indicating that the release form was invalid. Under the circumstances, we conclude that the release form is valid. See Bellew v. Byers, 272 Ind. 37, 38, 396 N.E.2d 335, 336 (1979) (addressing a minor’s compromise claim in which the parent and natural guardian was paid an amount for the injuries to her three children in return for a release), abrogated on other grounds by Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588 N.E.2d 1264 (Ind. 1992); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 206-207 (Ohio 1998) (holding that it was not appropriate to equate a pre-injury release with a post-injury release and that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activites where the cause of action sounds in negligence).

We next turn to whether the release applies to Taylor’s injury. The YMCA argues that the release form applies to Taylor’s action of sliding into second base during the softball game. [*10] The YMCA also argues that “one can take almost any on-field mishap and seek to couch it in terms of negligence by arguing for more padding, softer playing surfaces, rule changes, etc., but the fact remains that the injury arose because of a risk inherent in the game.” Appellant’s Reply Brief at 3. Taylor argues that the YMCA’s repeated reference to her injury being the result of her sliding into second base without referencing the accompanying allegations of the complaint that the injury was caused by the negligent maintenance of the second base is a glaring omission throughout the YMCA’s argument.

“It is well established in Indiana that [HN11] exculpatory agreements are not against public policy.” Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 749 (Ind. Ct. App. 2006), trans. denied. [HN12] “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.” Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999), trans. denied. However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically [*11] and explicitly refer[s] to the negligence of the party seeking release from liability.'” Id. (quoting Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998)). [HN13] An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006), trans. denied. Furthermore, [HN14] 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. Id. [HN15] The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. Id. at 581-582.

The form signed by Taylor’s mother did not release the YMCA of liability for all negligent acts because the form did not contain any specific or explicit reference to the negligence of the YMCA or owner of the field. See Stowers, 855 N.E.2d at 749 (“The Stowers’ proposed instruction set out that the Release Forms did not absolve Clinton Central of liability for negligent acts if they did not contain language specifically referring [*12] to negligence; thus, it was a correct statement of the law.”). Thus, we must determine whether Taylor’s injury was derived from a risk inherent in the nature of the activity. See Anderson, 852 N.E.2d at 581 (holding that 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).

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. See id. at 584-585 (observing that the plaintiff was injured when attempting to mount her horse and concluding that the plaintiff’s damages were inherent in the nature of the activity of horse riding and that the trial court did not err by granting summary judgment to the defendants). The release attached to the YMCA’s motion to dismiss indicated that the owner of the field would not be responsible for any injury or medical expenses “incurred while participating in practice or playing in a game.” Appellant’s Appendix at 12. Based upon the language in the release, we conclude [*13] that the YMCA met its burden of making a prima facie showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law and that the burden then shifted to Taylor who did not designate any evidence to show that an issue of material fact existed. Accordingly, we conclude that the trial court erred by denying the YMCA’s motion for summary judgment.

For the foregoing reasons, we reverse the trial court’s denial of the YMCA’s motion for summary judgment.

Reversed.

FRIEDLANDER, J., and PYLE, J., concur.

WordPress Tags: Wabash,Young,Christian,Association,Thompson,LEXIS,Service,Appellant,Defendant,Taylor,Brian,Charlene,Appellees,Plaintiffs,COURT,APPEALS,INDIANA,August,PRIOR,HISTORY,APPEAL,FROM,CIRCUIT,Honorable,Robert,McCallen,Judge,Cause,COUNSEL,RANDALL,GRAFF,ORFEJ,NAJDESKI,LESLIE,POLLIE,Kopka,Pinkus,Dolin,Eads,Indianapolis,JOSEF,MUSSER,Spitzer,Herriman,Stephenson,Holderead,Conner,Marion,JUDGES,BROWN,FRIEDLANDER,PYLE,OPINION,PUBLICATION,YMCA,judgment,October,complaint,premises,Field,Dreams,Metro,Summer,Baseball,Softball,League,failure,dangers,obstacle,participants,Appendix,injury,November,Motion,Dismiss,Change,Venue,Pursuant,Trial,Rule,participation,statement,guardian,permission,injuries,owner,December,response,minors,person,tort,maintenance,January,February,April,jurisdiction,Appellate,relief,Albany,Floyd,Educ,Ammerman,Although,Holman,Galbraith,Anderson,dismissal,plaintiff,affidavit,Summary,fact,Mangold,Natural,inferences,decision,Starks,Village,Apartments,Klotz,Hoyt,Klinker,Merchants,Bank,Under,existence,negligence,Peters,Forster,Rhodes,jury,argument,Code,parents,approval,settlement,accordance,statute,waiver,Appellee,Brief,policy,protection,obligations,reliance,scenario,events,agreement,hobby,Title,probate,Further,Bellew,Byers,Huffman,Monroe,Corp,Zivich,Mentor,Soccer,Club,Ohio,agreements,action,mishap,reference,allegations,omission,Stowers,Clinton,Cent,obligation,consequences,Marsh,Dixon,clause,Powell,Health,Fort,Wayne,absence,Four,Seasons,Equestrian,requirement,danger,instruction,Release,Forms,Central,Thus,horse,defendants,denial,whether,behalf,upon,nonmovant,prima,facie,exculpatory,trans,releasee

Release signed for whitewater rafting also works to stop claim for tripping getting out of raft bus. Tennessee release law broad enough to protect items enumerated in the release

Posted: March 10, 2014 | Author: Recreation Law | Filed under: Paddlesports, Release (pre-injury contract not to sue), Tennessee, Whitewater Rafting | Tags: Bus, Negligence, Public Policy, Raft, Rafting, Rafting Bus, Release, statute, Tennessee, Transportation, Whitewater Rafting | Leave a comment

Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

Plaintiff: Nathan & Brandy Henderson

Defendant: Quest Expeditions, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendant based on the release

This Tennessee case is quite interesting. The plaintiff was a first-time whitewater rafter. After the raft trip ended, he boarded the bus to ride back to the office. For some reason, not in the record, he was forced to get out of the first bus and board another bus. While disembarking from the first bus he slipped and fell sustaining injuries.

He filed this suit which was dismissed by the trial court based on a Motion for Summary Judgment. The plaintiff appealed arguing the release was barred by public policy and void because it was too excessive in its scope.

Summary of the case

The court looked at all arguments raised by the plaintiff on appeal. Some that I have reviewed and written about before and some new and “novel” theories.

The first issue was the plaintiff stated the release should be thrown out because the plaintiff “had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant.”

Can you imagine the pile up in an office if you had to go over each release with each patron who came to purchase a trip from you?

The plaintiff also argued that “he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional money to not have to sign the waiver.”

This is a rare argument, but it has been used to defeat releases in a few cases. See Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2.

The next argument was the release was void because it violated public policy. The court first looked at whether releases were valid in Tennessee. The Tennessee Supreme Court upheld releases.

It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.

Of note is the statement by the court that the word negligence does not need to appear in the release. The Tennessee Supreme Court adopted the requirements of Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963) to determine if an activity should not be covered by a release.

(a.) It concerns a business of a type generally thought suitable for public regulation.

(b.) 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.

(c.) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

(d.) 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.

(e.) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

The court then looked at the factors as explained by the Tennessee Supreme Court. Generally, professionals are not allowed to receive a release for their negligence, where tradesmen could.

…not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’

Whitewater rafting is not a professional trade and as such the defendant could use a release. Whitewater rafting “is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” There is no necessity that one goes whitewater rafting.

The plaintiff then argued that because whitewater rafting was regulated it was of a public interest. Tennessee’s legislature passed 2005 Tenn. Pub. Acts 169 which regulated whitewater rafting in the state. However, the statute specifically allowed the use of releases. T.C.A. 70-7-205. Written waivers, exculpatory agreements and releases.

The final argument was the injury received by the plaintiff, slipping exiting a bus, which not an inherent risk of whitewater rafting and thus of outside the scope of the release. The plaintiff described the busses of the defendant in his complaint as: “…dilapidated school buses.” (Seems like a normal rafting company to me……

However, the court rejected that argument on two grounds. The first was the release was written broadly and covered all negligent acts of the defendant. The second was the release mentioned bus or van transportation. “Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white-water rafting and “bus or van transportation” provided by the defendant.”

The court concluded:

The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Con-tract states that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written.

So Now What?

First, never run the risk of having a release thrown out because it does not include the magic word negligence. Even though the Supreme Court may not require it today, your lawsuit tomorrow may set precedence on that issue. It is easy to put in and should be in every release.

To defeat the argument that you should be able to bargain your way out of the release or that whether there are any other companies offering trips without requiring a release to be signed you should put language in your release advising your clients about those issues. A release that states that the person is signing the release voluntarily and undertaking the activity voluntarily and is free to go, as in this case, whitewater rafting with someone else can eliminate this argument in most states.

To engage or purchase a trip with you without signing a release have your insurance company send you a letter stating how much your insurance would cost if a release is not signed. Then if asked you can show a patron the letter to support charging the normal price plus the increase in your insurance premium to go on a trip without signing a release. A $10,095.00 raft trip is probably not worth it for a day on the water.

If anyone asks if they can go rafting and not sign a release, the easiest way to respond is to send them to a competitor.

Whether or not transportation will be covered by a release will be different for each state. In some states if the transportation is incidental to the activity it may be covered. Here the release was written broadly, and releases are interpreted broadly to allow the scope of the release to cover transportation.

In some states, however, transportation is an activity that cannot be released because it is protected by public policy.

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

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

Outdoor Recreation Insurance, Risk Management, and Law

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

Facebook

Threads

X (formerly known as Twitter) logo

Stimulus

Blue Sky

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Quest Expeditions, Inc., Nathan & Brandy Henderson, Whitewater Rafting, Tennessee, Rafting Bus, Negligence, Public Policy, Statute, Whitewater Rafting, Rafting, Release, Bus, Transportation,

WordPress Tags: Release,whitewater,Tennessee,items,Henderson,Quest,Expeditions,Tenn,LEXIS,Plaintiff,Nathan,Brandy,Defendant,Claims,negligence,Defenses,office,injuries,Motion,Summary,Judgment,policy,scope,arguments,Some,theories,employee,patron,waiver,money,argument,Atkins,Swimwest,Center,Wisc,Supreme,Court,State,incident,Further,clause,freedom,statement,requirements,Tunkl,Regents,California,Rptr,regulation,exculpation,importance,member,transaction,advantage,strength,adhesion,provision,purchaser,protection,person,seller,agents,factors,professionals,agreement,profession,marketplace,legislature,Acts,statute,Written,waivers,agreements,injury,complaint,Seems,transportation,Moreover,Contract,plaintiffs,dangers,equipment,employees,tract,signature,lawsuit,precedence,clients,insurance,letter,cost,worth,competitor,Whether,Here,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Public,exculpatory,tradesmen

New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim. The release stopped the claims the plaintiff suffered running in a half marathon.

Posted: March 3, 2014 | Author: Recreation Law | Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: #race, Gross negligence, Half Marathon, Inc. Road Runners Club Of America, Jogging, Negligence, New York, New York City, New York City Department of Parks and Recreation, New York Road Runners, Plaintiff, Road Runners Club of America, Runner, running, Running Race, The City of New York | 1 Comment

The plaintiff slipped and fell on ice while trying to leave the course to tie his shoe. He sued the City of New York, NYC Department of Parks, New York Road Runners, Inc. and Road Runners Club of America for his injuries. He alleged gross negligence for having him leave the course if he had a problem where he fell on ice.

Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

Plaintiff: Jonathan Zuckerman

Defendant: The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Runners Club Of America

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: release

Holding: for the defendants

At the beginning of this half marathon that ran through Central Park in New York City, the plaintiff was instructed with other runners to leave the course if they had a problem. This was done so runners would not run into each other.

The plaintiff was an experienced runner who had participated in 100 events. During the race, he left the course to tie his shoe. He slipped on ice next to the course suffering this injury.

The release in this case was short; however, it was long enough to cover the important points according to the court. The release specifically mentioned “falls” as a risk of the activity and had the plaintiff agree to release claims due to negligence.

The release was signed by the plaintiff electronically. The signors had to elect to accept the terms or reject the terms. If they runner rejected the terms of the release, they could not register for the race.

Summary of the case

The court started by looking at the legal requirements in New York that affect the validity of a release.

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable were not expressly prohibited by law.

Language relieving one from liability must be unmistakable and easily understood.

Agreements to indemnify for gross negligence or willful behavior, however, are void.

The court also defined the requirements to support a claim for gross negligence in an effort to overcome a release. “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference to the rights of others.”

It is refreshing to see the court recognize the claim as one trying to evade the release as a defense. The court stated, “I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver.”

The court reviewed the release and found the risk the plaintiff undertook was specifically identified in the release, a fall. The court also found the instructions the race official gave to the participants to leave the race course were reasonable. There was no greater liability attributed to the race promoter for having runners leave the course because to fail to do so would have runners running into each other on the course.

Having looked at the facts and the release, the court found that gross negligence could not reasonably be drawn from those facts.

City of New York’s Motions

The City of New York moved to amend its complaint to include the defense of Release. The city was named in the release as an entity to be protected by the release but had not pled the defense of release. As such the court had to grant the cities motion to amend its answer so it could plead the additional defense.

In another action that is rarely done in courts, the court reviewed the law on granting motions to amend and then granted the motion. The court then said since it had already ruled that a release stopped the plaintiff’s claims against the sponsor, it would also stop the plaintiff’s claims against the city and dismissed the city from the case.

So Now What?

It is rare to see a court take the initiative to do undertake these two actions. The first to throw out the gross negligence claims and the second to throw out the negligence claims of the city without a motion for summary judgment. Courts are reluctant to take such acts or the rules of civil procedure will not allow a court to do so.

The decision is also valuable because it defines what gross negligence is in New York.

Here an electronic release that was well written stopped the plaintiff’s claims against the race promoter and the entities the release also protected.

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. Road Runners Club Of America, Half Marathon, Running, Running Race, Race, Jogging, Runner, Gross Negligence,

WordPress Tags: York,negligence,plaintiff,Department,Parks,Road,Runners,Club,America,injuries,Zuckerman,Misc,LEXIS,Slip,Jonathan,Defendant,Recreation,Claims,Defenses,defendants,Central,Park,runner,events,injury,Summary,requirements,Contractual,agreements,Language,behavior,effort,Gross,limitation,indifference,NYRR,accident,scope,waiver,instructions,participants,promoter,Motions,complaint,Release,cities,action,initiative,judgment,Courts,procedure,decision,Here,entities,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Half,Marathon,Race,shoe,upon,whether

Plaintiff tries to hold ski area liable for exceeding the state ski statute, however the court sees the flaws in the argument.

Posted: January 20, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, New Hampshire, Ski Area, Skiing / Snow Boarding | Tags: Defendant, Eileen Gwyn, Estate of Howard Gwyn, increased risk of harm, Loon Mountain Corporation, Loon Mountain Ski Area, Margaret Do, Negligence, New Hampshire, ski area, Ski Resort, Ski Safety Act, skiing, Summary judgment, voluntarily assumed duty negligently performed | 1 Comment

The New Hampshire Ski Area Safety Act only requires a ski area to post as a sign to close a run. The plaintiff tried to claim that a rope closing the run created greater liability rather more protection for skiers and boarders. A voluntarily assumed duty negligently performed is something always created in many outdoor recreation programs or businesses. However, it is not the change that is the legal issue. It is whether or not you increase the risk of harm to your guests that is controlling.

Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995

Plaintiff: Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do

Defendant: Loon Mountain Corporation, d/b/a Loon Mountain Ski Area

Plaintiff Claims: violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

Defendant Defenses: New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

Holding: for the defendant’s ski area

In this case, two people died and one person was injured on an icy ski slope. The first victim standing above the closed trail slipped and slid under the rope 900 feet to his death. The next two victims took off their skis and tried to hike down to the first victim. Both eventually fell sliding down the slope.

The survivors and the estates sued claiming violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act and common law negligence claims. The lower court dismissed all but two of the claims on the defendant’s motion to dismiss. Those two claims were eventually dismissed after discovery had occurred, and the defendant filed a motion for summary judgment.

The plaintiff’s appealed the dismissal.

Summary of the case

The trail the plaintiffs fell down had been closed because it was icy. The New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act required that a notice be placed on signs at the base of the lift, on trail-boards, and a sign posted at designated access points.

The plaintiff argued that the trail had to be closed not only at the main access point to the trail but all possible access points to the closed trail from another trail. The court looked at a trail map of the area and realized that the signage alone to mark a trail closed would be enormous.

The second argument was the most disturbing. The statute did not require that a rope be used to close a trail. Only a sign was needed to close a trail. By placing the rope across the trail the rope “could lure a skier closer to the icy entrance than one would go otherwise.” The plaintiff then argued that by a duty, voluntarily assumed but negligently performed was not protected by the ski statute.

There are situations where a voluntary act increases the risk of harm to someone creating negligence.

…but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care.

The district court rejected this argument.

[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.

Because the first person to fall slipped on an ice patch, which was an inherent risk assumed by the skier under the statute, the plaintiff could not argue the risk was increased. The risk was there, and the rope did not change or increase the risk.

The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.

The next two plaintiffs obviously assumed the risk and by taking off their skis, probably increased the risks themselves.

The remaining claims of the plaintiff were dealt with quickly. The first was the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act violated the New Hampshire Constitution. However, the New Hampshire Supreme Court had already ruled it did not. The final two were procedural in nature. Whether the question on appeal had been certified and whether the plaintiff’s request to amend their complaint had been improperly denied.

So Now What?

Cases like this scare outdoor recreation programs into not doing the next thing to make a program better because of fear of creating more problems. Do not allow the threat of a lawsuit to make your program better or safer.

Do make your changes or upgrades such that the changes do not place your guests in a place of increased risk or such that you have placed your guests in a position where they may be confused.

Any risk can be assumed by your guests, clients, or skiers. You need to make sure that any changes in your program, operation or business result in a change in the information and education your clients receive about the risk.

Here the risk had not changed to the plaintiff so that the change, the actions above those required by the statute, did not increase the risk to the plaintiffs. The icy spot was there whether or not the rope was placed closing the trail or where the rope was placed.

Do the right thing and continue with an education of your guests to make sure they know what you are doing and why and what those risks are.

James H. “Jim” Moss

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.

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

Threads

Stimulus

Blue Sky

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Eileen Gwyn, Estate of Howard Gwyn, Margaret Do, Loon Mountain Corporation, Loon Mountain Ski Area, New Hampshire, Ski Area, Ski Safety Act, voluntarily assumed duty negligently performed, increased risk of harm,

WordPress Tags: Plaintiff,area,statute,flaws,argument,Hampshire,protection,boarders,recreation,guests,Gwyn,Loon,Mountain,Corporation,LEXIS,Executrix,Estate,Howard,Margaret,Defendant,Claims,violation,Skiers,Passenger,Tramway,Defenses,person,victim,feet,death,victims,Both,survivors,estates,negligence,discovery,judgment,dismissal,Summary,situations,performance,reliance,district,complaint,allegations,failure,undertakings,situation,injuries,plaintiffs,accident,Constitution,Supreme,Court,Whether,Cases,threat,lawsuit,clients,information,education,Here,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,skis,skier

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

Posted: January 6, 2014 | Author: Recreation Law | Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Activity Owners Association of Hawaiian, CJM Country Stables, Equine, Gross negligence, Hawaii, Hawaiian Recreational Activity Liability Statute, Horse, Horseback, Horseback Ride, John King, Kualoa Ranch, Negligence, Negligence per se, Patricia King, Product liability, Punitive damages, stable, strict liability | 2 Comments

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

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

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

Hawaii Revised Statutes, Section 663-1.54

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

In Wheelock vs. Sport Kites

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

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

Plaintiff Claims: Negligence, Gross Negligence and Product Liability

Defendant Defenses: Release

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

In King v. CJM Country Stables

Plaintiff: John King and Patricia King

Defendant: CJM Country Stables

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

Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute

Holding: For the Plaintiff

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

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

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

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

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

§ 663-1.54. Recreational activity liability.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So?

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

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

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

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

So Now What?

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

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

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Hawaii, Stable, Equine, Horse, Horseback, Horseback Ride, CJM Country Stables, John King, Patricia King, Hawaiian Recreational Activity Liability Statute, Activity Owners Association of Hawaiian,

WordPress Tags: Hawaii,money,Legislation,recreation,Wheelock,Sport,Kites,Supp,Country,Stables,Dist,LEXIS,Statutes,Section,statute,Hawaiian,Federal,District,Court,Decision,Plaintiff,Mary,Rose,Administratrix,Estate,David,William,Guardian,Litem,Maggie,minors,Defendant,corporation,Wills,Kells,Kualoa,Ranch,Aviation,Claims,Negligence,Gross,Product,Defenses,Release,John,Patricia,Strict,Intentional,Negligent,Infliction,Emotional,Loss,Consortium,Punitive,Damages,Respondeat,Superior,Recreational,Tourists,life,blood,industry,vacation,effort,providers,lawsuits,injuries,development,death,canopy,wife,husband,waiver,Despite,Owners,Association,litigation,accidents,belief,insurance,premiums,growth,Ammie,Roseman,Hawai,Worth,Paper,Written,accident,system,person,limitation,bicycle,mountain,patrons,omissions,injury,subsection,operators,patron,owner,operator,disclosure,instruction,determination,trier,fact,danger,Does,omission,Vancouver,rider,horse,presumption,judgment,versions,interpretations,jury,defendants,cost,Form,incident,Plaintiffs,Under,equipment,failure,precedent,settlement,Summary,trials,Second,customers,provider,customer,Although,attorneys,briefcase,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,Lawyer,Paddlesports,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Stable,Equine,Horseback,Ride,whether

When releases do not work: Employees and Workers Compensation

Posted: November 13, 2013 | Author: Recreation Law | Filed under: Uncategorized | Tags: Employee, Employer, Independent Contractor, Intern, Negligence, Worker’s Compensation, Workers Compensation | Leave a comment

State Law prohibits releases for employees if they are covered by Worker’s Compensation.

Prior to the creation of Worker’s Compensation, if an employee was injured at work he had to sue his employer and prove the employer was negligent to recover for his injuries. This created problems for both parties. Injured employees went bankrupt attempting to win a suit and employers injured employees rather than keeping workplaces safe. It was cheaper to fight a lawsuit then make a workplace safe.

With the creation of worker’s compensation the employers and employees both gave up and received benefits. Basically, in return for not suing the employer the employee receives medical care and some of their lost wages.

An employee gives up the right to sue the employer if they accept worker’s compensation benefits. The employer is required to carry worker’s compensation on employees or they can suffer fines or damages levied by the state or if sued by the employee additional damages over what are owed.

Colorado Statutes state that if you accept worker’s compensation you give up other rights to sue.

C.R.S. §§ 8-41-104. Acceptance as surrender of other remedies

An election under the provisions of section 8-40-302 (5) and in compliance with the provisions of articles 40 to 47 of this title, including the provisions for insurance, shall be construed to be a surrender by the employer, such employer’s insurance carrier, and the employee of their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries or death of such employee other than as provided in said articles, and shall be an acceptance of all the provisions of said articles, and shall bind the employee personally, and, for compensation for such employee’s death, the employee’s personal representatives, surviving spouse, and next of kin, as well as the employer, such employer’s insurance carrier, and those conducting their business during bankruptcy or insolvency.

Georgia Statutes state:

O.C.G.A. § 34-9-11 (2013)

§ 34-9-11. Exclusivity of rights and remedies granted to employee under chapter; immunity granted to construction design professionals

(a) The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits, and other than a construction design professional who is retained to perform professional services on or in conjunction with a construction project on which the employee was working when injured, or any employee of a construction design professional who is assisting in the performance of professional services on the construction site on which the employee was working when injured, unless the construction design professional specifically assumes by written contract the safety practices for the project. The immunity provided by this subsection to a construction design professional shall not apply to the negligent preparation of design plans and specifications, nor shall it apply to the tortious activities of the construction design professional or the employees of the construction design professional while on the construction site where the employee was injured and where those activities are the proximate cause of the injury to the employee or to any professional surveys specifically set forth in the contract or any intentional misconduct committed by the construction design professional or his employees.

(b) As used in subsection (a) of this Code section, the term “construction design professional” means any person who is an architect, professional engineer, landscape architect, geologist, or land surveyor who has been issued a license pursuant to Chapter 4, 15, 19, or 23 of Title 43 or any corporation organized to render professional services in Georgia through the practice of one or more such technical professions as architecture, professional engineering, landscape architecture, geology, or land surveying.

(c) The immunity provided by this subsection shall apply and extend to the businesses using the services of a temporary help contracting firm, as such term is defined in Code Section 34-8-46, or an employee leasing company, as such term is defined in Code Section 34-8-32, when the benefits required by this chapter are provided by either the temporary help contracting firm or the employee leasing company or the business using the services of either such firm or company. A temporary help contracting firm or an employee leasing company shall be deemed to be a statutory employer for the purposes of this chapter.

Illinois law states:

§ 820 ILCS 310/5. (Text of Section WITH the changes made by P.A. 89-7, which has been held unconstitutional) [Exclusive remedy against employer; third party liability]

Sec. 5. (a) There is no common law or statutory right to recover compensation or damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for or on account of any injury to health, disease, or death therefrom, other than for the compensation herein provided or for damages as provided in Section 3 of this Act [820 ILCS 310/3]. This Section shall not affect any right to compensation under the “Workers’ Compensation Act” [820 ILCS 305/1 et seq.].

No compensation is payable under this Act for any condition of physical or mental ill-being, disability, disablement, or death for which compensation is recoverable on account of accidental injury under the “Workers’ Compensation Act“.

Consequently the battle in worker’s compensation cases is whether or not someone was an employee. Several people are automatically excluded; first independent contractors are not employees. Interns are probably a revolving area of the law, and are probably moving close to being called employees. Several recent federal regulatory changes have required more education for interns and several lawsuits have resulted in interns receiving pay. If interns are paid, then they are employees covered under worker’s compensation.

Interns that have been injured and not covered by worker’s compensation are prevented from recovering because of state law, not because of unequal bargaining power.

The prohibition against lawsuits does not extend to malfunctioning equipment or any third party that might have caused the injury. An example would be an employee working on a road that is hit and injured by a car. The employee’s worker’s compensation would cover his lost wages and medical bills. The injured employee would still sue the driver of the car. However the worker’s compensation insurance company would have the right to recover any damages first before the injured employee based on its subrogation rights.

Simply put, an injury on the job provides guarantees not lawsuits. Those guarantees vary by state, but generally it means 100% of the injured employee’s medical bills are paid and a percentage of their income is replaced. If necessary additional retraining and/or long term disability if the injury is severe enough or permanent.

Employers don’t have to worry about being sued and employees do not have to worry about any defenses to their claims. Statues state that Assumption of the Risk is not a defense to a worker’s comp claim. (C.R.S. 8-41-101 (2013))

8-41-102. Liability of employer complying

An employer who has complied with the provisions of articles 40 to 47 of this title, including the provisions relating to insurance, shall not be subject to the provisions of section 8-41-101; nor shall such employer or the insurance carrier, if any, insuring the employer’s liability under said articles be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.

There is no litigation between employers and employees any more. Now that type of litigation resolves around whether or not someone was an employee. If you are an employer, make sure every person understands that situation and you can prove it, either in writing or some other way. You also must be able to prove that someone is not an employee according to the law. Just saying someone is not an employee is not enough.

Incorrect Articles

Waivers, Employer/Employees, and Bargaining Position

Employer/Employee Waiver Enforced Despite Unequal Bargaining Power

Waiver Protects Chimp Sanctuary from Suit by College Intern

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, EMS, Emergency Medical Systems, Worker’s Compensation, Workers Compensation, Employer, Employee, Negligence, Employer, Employee, Independent Contractor, Intern,

ordPress Tags: waivers,State,employees,Worker,Compensation,Prior,creation,employee,employer,injuries,employers,workplaces,lawsuit,workplace,Colorado,Statutes,Acceptance,election,compliance,insurance,carrier,method,determination,action,account,death,spouse,bankruptcy,insolvency,Georgia,chapter,construction,professionals,parents,dependents,injury,person,agreement,workers,fact,servant,relationship,employment,conjunction,performance,subsection,preparation,specifications,misconduct,Code,architect,surveyor,Title,corporation,professions,architecture,Section,purposes,Illinois,ILCS,Text,Exclusive,insurer,broker,advice,recommendations,agents,health,disease,disablement,Several,contractors,Interns,area,education,lawsuits,prohibition,equipment,example,road,driver,percentage,income,Statues,Assumption,Risk,proceedings,litigation,situation,Just,Incorrect,Articles,Position,Waiver,Despite,Unequal,Power,Protects,Chimp,Sanctuary,Suit,College,Intern,Leave,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Samaritan,Emergency,Medical,Systems,Independent,Contractor,third,pursuant,whether

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

Posted: August 19, 2013 | Author: Recreation Law | Filed under: Cycling, Massachusetts, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: #race, Boys and Girls Clubs of Metrowest, Cycling, d/b/a Fiske Independent Race Management, Defendant, Fiske Independent Race Management, Gross negligence, Inc's, Inc., Massachusetts, Massachusetts. MA, Negligence, Regulations, Sports, Standards, Triathlon, USA Triathlon, Wet 'N' Wild Triathlon, William Fiske | Leave a comment

If the industry says you should and calls it a standard you better

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290 (Mass. Sup 2003)

Plaintiff: Derek A. Lautieri

Defendant: Jorun G. Bae

Third Party Defendants: defendants USA Triathlon, Inc., William Fiske d/b/a Fiske Independent Race Management, the Boys and Girls Clubs of Metrowest, Inc.

Plaintiff Claims: negligence and court added gross negligence

Defendant Defenses: Release

Holding: Holding release released defendants who could not be held to gross negligence.

This decision is from a trial court in Massachusetts. It has limited value in Massachusetts and other states.

If you have read many of these articles, you understand that releases do not bar claims for gross negligence. In this case, the release did not bar the claim for gross negligence, even when the plaintiff did not plead gross negligence.

This is a car/bike accident case during a triathlon. The plaintiff was cycling in a triathlon with several other cyclists. The defendant Bae, driver pulled out in front of the cyclists resulting in a collision. The course was not closed to traffic.

The defendant car driver brought in as third party defendants the race organizer, William Fiske d/b/a Fiske Independent Race Management (Fiske), the race charity Boys and Girls Clubs of Metrowest, Inc. (BGC) and the triathlon association sanctioning body USA Triathlon, Inc., (USTA).

The third party defendants were brought in for “contribution.” Contribution is defined in Massachusetts as:

Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom contribution is sought could have been held liable in tort.”

For the defendant, Bae to enable to enforce contribution against the third party defendants she must show that the third party defendants could be held liable at trial in tort. Any defenses available to the third party defendants against the original plaintiff will also be a defense to the contribution claim of the defendant Bae.

Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred.

Fiske was the person who put the triathlon together. Even though Fiske was operating as Fiske Independent Race Management, the court indicated that Fiske was not a corporation or company (LLC). USTA sanctioned the race, including providing liability insurance and standards, according to the court, on how the race should be run.

The defendant Bae argued that the third party defendants should be liable for failing to “a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred.”

The court determined that USTA was:

…the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

In that position, USTA created regulations for running triathlons which the court quoted:

2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.

Fiske did not follow any of the guidelines offered by the USTA.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

Summary of the case

The defense raised by the third party defendants was “release.” The plaintiff signed a release to join the USTA and receive a license. The plaintiff also signed an application which contained language similar to that of a release when she entered the race.

Under Massachusetts law, the enforceability of a release is a question (issue) of law to be decided by the court. “Massachusetts law favors the enforcement of releases.”

There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted.

Nor does the word negligence have to be found in the release. Releases, like all other states, do not bar claims of gross negligence. Neither the plaintiff nor the defendant complained of any gross negligence. The court, however, stated that even though not pled, gross negligence could be found later against Fiske. If that was the case, then the releases signed by the plaintiff did not bar the claim against Fiske. “While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.” The court found that the actions of Fiske could rise to the level of gross negligence.

The basis of that finding was Fiske did not follow the guidelines or regulations of the governing body, the USTA in running the race. “As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence.”

To some extent, the court must have thought that Fiske’s failure to follow the standards of the USTA was very egregious to raise the issue of gross negligence in the case.

The court quoted the regulations cited above as evidence that what Fiske did when ignoring the industry standards was sufficient to void the release because it raised the possibility that Fiske was grossly negligent.

The court further defined negligence and gross negligence under Massachusetts law.

Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.”

The court’s justification for not letting Fiske out of the case and for allowing the possibility of a claim for gross negligence was interesting.

While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against the third-party defendants has been made.

Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants.

The court then looked at the allegations against the USTA.

In order for Lautieri to establish that USTA owed him a duty of care at the time the accident occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” or that USTA voluntarily, or for consideration, assumed a duty of care to Lautieri. This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet.

There was no evidence that showed USTA participated or was supposed to participate in the planning, operation, supervision or running of the race. USTA did not even have a representative of USTA attend the race. Consequently, because there was no duty and USTA created no duty to the plaintiff the release barred the claims of the third party defendant.

The court’s discussion of the Boys and Girls Club was shorter.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members.

USTA and the Boys and Girls Club were dismissed from the lawsuit.

So Now What?

The “release” or as identified by the court, application, was extremely weak. If the release had identified the course as being an open course, not closed to cars, this might have changed the outcome of the case for Fiske. No matter, the document was too weak not to create problems rather than resolve them in this case.

However, even if the release was stronger, it might not have gotten Fiske out of the case because of the court raised allegations of gross negligence. The USTA created regulations for running a race. By requesting and receiving sanctioning for the race, Fiske knowingly or unknowingly, became burdened or bound by those regulations. The court called them standards, regulations and guidelines throughout the decision, but the simple fact is they were a noose around the third party defendant’s neck.

You cannot look at your industry and not understand the standard of care in the industry or not find and follow the guidelines the industry is creating.

These “regulations” are fairly simple and appear to be commons sense. However, they substantially increase the cost of running an event. Closing a street requires government paperwork, government employees and usually help from law enforcement. All significantly increase the cost of running the event.

However, the regulations more importantly are proof that if an industry association creates regulations, standards, guidelines or rules, they are the standard of care against which members of the same industry will be judged in court.

For more articles on how standards created by an association are used to harm association 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

Plaintiff uses standards of ACCT to cost defendant $4.7 million

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

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, USA Triathlon, Inc’s, Boys and Girls Clubs of Metrowest, Inc., William Fiske, d/b/a Fiske Independent Race Management, William Fiske, Fiske Independent Race Management, cycling, Triathlon, Race, Standards, Regulations, Massachusetts. MA, Wet ‘N’ Wild Triathlon,

WordPress Tags: Industry,negligence,defendant,lawsuit,Lautieri,Mass,Super,LEXIS,Plaintiff,Derek,Jorun,Third,Defendants,Triathlon,William,Fiske,Independent,Race,Management,Boys,Girls,Clubs,Metrowest,Claims,Defenses,Release,decision,Massachusetts,bike,accident,driver,collision,organizer,association,USTA,contribution,Where,tort,injury,person,Supreme,Judicial,Court,statute,action,corporation,insurance,layout,failure,personnel,intersection,incident,requirements,organizers,road,lanes,width,feet,vehicles,Control,intersections,turnarounds,Watch,Cyclists,motorists,guidelines,Director,warnings,Summary,Under,enforcement,absence,fraud,agents,employees,interpretation,Releases,Neither,waivers,basis,definition,extent,qualification,omission,degree,vigilance,forethought,prudence,diligence,requirement,moment,Gross,magnitude,inadvertence,amounts,indifference,obligations,violation,circumspection,consequences,Ordinary,inattention,tendency,justification,judgment,theory,allegations,supervision,discussion,Club,cars,outcome,fact,noose,neck,commons,cost,event,street,government,paperwork,Standards,Expert,Camp,Report,ACCT,million,Trade,Summer,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Human,Rock,Ropes,Course,Challenge,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Regulations,Wild,wilful

Will New York entertain counterclaims for attorney fees and costs to a prevailing defendant?

Posted: July 29, 2013 | Author: Recreation Law | Filed under: New York, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: assumption of the risk, Hang gliding, Negligence, New York, New York City, Paragliding, Plaintiff, Public Policy, Recreation, Release, Skydiving, Summary judgment, Tandem, Tandem Skydiving | 3 Comments

Underlying claim is dismissed for assumption of the risk. Falling out of the sky is obviously dangerous.

Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)

Plaintiff: Lisa Nutley

Defendant: SkyDive the Ranch

Plaintiff Claims: Negligence

Defendant Defenses: Release and Assumption of the risk, counterclaim for attorney fees based on the release

Holding: for the defendant on the claims based on assumption of the risk

This is an interesting case. To understand the case, I’ve also posted the trial court opinion leading to the appeal of this case.

The spouse of the plaintiff bought her a tandem sky dive as a gift. During the jump, the main shoot did not open. The reserve shoot did open. During the jump, the plaintiff broke her third and fourth fingers on her right hand. She sued for negligence.

The defendant filed a motion for summary judgment to dismiss the plaintiff’s claims based on the three releases she had signed and the video and instruction she had watched.

The trial court denied the motion for summary judgment (Nutley v. Skydive The Ranch, 22 Misc. 3d 1122(A); 881 N.Y.S.2d 365; 2009 N.Y. Misc. LEXIS 274; 2009 NY Slip Op 50223(U); 241 N.Y.L.J. 23) and the defendant appealed.

Summary of the case

The basis of the denial of the motion for summary judgment is a New York statute which prohibited the use of a release for recreational activities. New York General Obligations Law (“GOL”) §5-326. The lawsuit was dismissed because the trial court found the defendant operated a sky-diving facility as a recreational business. The Defendant had argued that it was an educational business which does not fall under §5-326.

The appellate court found the releases were void under the New York statute.

The appellate court found that the risks of the activity were fairly obvious, and the plaintiff had assumed the risk of her injuries.

Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport

The court then went back to its decision on releases and found the language attempting to release the defendant for negligence was void; however, the rest of the release was still valid.

So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact…

Part of one of the releases had included a clause that any suit required the plaintiff to pay the defendant’s damages of attorney fees and costs. The defendant filed a counterclaim against the plaintiff based upon this clause. The court did not rule on this issue finding that the trial court needed to look into whether this clause violated public policy as advanced by the statute that voids releases.

As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts.

The matter was sent back to the trial court to determine if the counterclaim for attorney fees and costs of the defendant violated New York Public policy and for any defenses the plaintiff may have to the defendant’s counterclaims.

So Now What?

The defendant lost on the defense of release, but won on the defense of assumption of the risk. The defendant might win on the opportunity to sue the plaintiff for attorney fees and costs in the assumption of risk agreements (since the releases are void).

This case appears to be fairly clear in its approach and decision. You can get hurt if you fall out of the sky. That is pretty obvious. Therefore, you assume the risk.

The argument about the sky-diving facility being an educational business rather than recreation is discussed in the trial court decision. That argument made by the defendant was based on Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). In Lemoine, the university was subject to the statute which voids releases in New York, but because it was an educational organization and not one for recreation, the statute did not apply.

What is different is the issue that the court held out the possibility that a demand for attorney fees and costs to a prevailing defendant may be viable in New York.

Four years has passed since this decision, and no other cases have been reported. Consequently, as of this time we do not have a decision to rely upon for this issue.

Even if there is not a valid claim because it violates public policy, there are several other theories on how a defendant can recover attorney fees in situations like this that may survive.

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Skydiving, Release, Public Policy, Assumption of the Risk, Tandem, Tandem Skydiving,

WordPress Tags: York,attorney,defendant,assumption,Nutley,SkyDive,Ranch,Slip,LEXIS,Appel,Plaintiff,Lisa,Claims,Negligence,Defenses,Release,opinion,spouse,tandem,gift,fourth,judgment,instruction,Misc,Summary,basis,denial,statute,General,Obligations,lawsuit,injuries,Here,fact,injury,event,decision,waiver,Severance,provision,Part,clause,policy,agreements,litigation,Public,argument,recreation,Lemoine,Cornell,Four,theories,situations,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,counterclaims,counterclaim,appellate,whether,upon

Release saves riding school, even after defendant tried to show plaintiff how to win the case.

Posted: July 8, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) | Tags: CA, California, California law, correctly, Defendant, dismount, dive, Duty of care, equestrian, Equine, extreme departure, Gross negligence, Horse, horseback riding, inappropriate, Inc., inherently, instructor, Jim Moss, jumping, lesson, Manual, material fact, Mill Creek Equestrian Center, misconduct, Negligence, notice of appeal, Ordinary Negligence, Plaintiff, recommended, Release, rider, riding, ring, risks inherent, Sport, standard of conduct, Summary judgment, totally outside, training, triable issue, United States, willful | Leave a comment

As an expert you just can’t state facts, you have to prove your facts.

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218

Plaintiff: Nicole Azad

Defendant: Mill Creek Equestrian Center, Inc.

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

Holding: for the defendant

This is a horseback riding case. The plaintiff was a beginner rider taking lessons from the defendant. The defendant’s instructor placed her in the jumping ring for training. Another horse in the ring spooked, which spooked the horse the plaintiff was riding. The plaintiff’s horse jumped the ring fence. The plaintiff fell off breaking her leg.

The plaintiff had signed a release before starting the lessons. The release was well labeled stating on each page that it was a release. The release also had a notice right above the signature line indicating the signor was giving up their legal rights.

The release, however, specifically stated that it did not prevent claims for gross negligence.

The plaintiff sued for negligence and after getting educated by the defendant, for gross negligence. The trial court dismissed the case after the defendant filed a motion for summary judgment. The plaintiff appealed.

Summary of the case

On appeal the plaintiff claimed:

…there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.

The court first looked at the validity of the release against a case argued by the plaintiff that found a release was insufficient. The court then only compared the release in this case to the arguments made in the case raised by the plaintiff.

The release was a two-page document. On the first page, it contained a titled, “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” On all other pages, it stated, “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, there was a statement that the signer was aware of the legal issues and acknowledgement of the legal issues.

The court found the release worked to stop claims of ordinary negligence but not gross negligence.

The court then reviewed California law on the duty owed by instructors in sports.

By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'”

A sports instructor must intentionally injury a student or engages in conduct that is totally outside the range of ordinary activity to be liable. Other than those two issues, the participant assumes the risk of the sport.

… a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’

In this case, the plaintiff had not raised any issues or facts, other than statements of the plaintiff’s expert witness who could support a claim of gross negligence. The plaintiff’s expert alleged the actions of the defendant were grossly negligent but did not demonstrate any facts showing an “extreme departure from the ordinary standard of conduct.” The court also pointed out the plaintiff stated the instructor was inadequately trained but not support her statement with proof.

The court in stating there was not proof of gross negligence stated:

Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity.

The court upheld the dismissal of the plaintiff’s complaint.

So Now What?

This release had 2 great points. The title and the heading on each page said this is a release. I’ve continuously stated that you cannot hide your release in other documents. It must be presented as a release to the signor and must plainly set forth the signor is giving up their legal rights.

However, don’t help the plaintiff sue you? Here the release said this document is no good if you prove I was grossly negligent. So what did the plaintiff need to do, prove gross negligence to win.

The facts of the case were pretty tame, and the injury to the plaintiff was relatively minor.

The court did look at what it would take to prove gross negligence from reviewing other cases. One was having a manual and showing an extreme departure from the manual.

If you write it down as the “way,” you better follow it.

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2013-23 Summit Magic Publishing, LLC

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Horseback Riding, Equine, Mill Creek Equestrian Center, Inc., California, CA, Release, Gross Negligence,

WordPress Tags: Release,defendant,plaintiff,Azad,Mill,Creek,Equestrian,Center,Unpub,LEXIS,Nicole,Claims,negligence,Defenses,beginner,rider,lessons,instructor,Another,horse,signature,judgment,Summary,fact,MCEC,arguments,AGREEMENT,INSTRUCTION,FORM,Above,statement,California,instructors,person,purveyor,patron,injury,student,participant,statements,departure,Gross,definition,Kahn,dismissal,complaint,Here,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Horseback,Equine,signor,whether

Good News ASI was dismissed from the lawsuit

Posted: June 3, 2013 | Author: Recreation Law | Filed under: Climbing Wall, Release (pre-injury contract not to sue), Washington | Tags: ASI, Climbing Rope, Climbing Wall, Jim Moss, Kosseff, Negligence, Rock climbing, Super Shut, Washington, Whitman College | Leave a comment

Bad news, the post-accident investigation proved the college was negligent according to the court.

Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)

Plaintiff: Stephanie Foster, et al.

Defendant: Alex Kosseff, et al.

Plaintiff Claims: Negligence: Plaintiff was the intended beneficiary of the defendant’s work;

Defendant Defenses: No duty owed to the plaintiff

Holding: For the defendant

This is a follow-up to the article, I wrote Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. The original article was about a motion to dismiss which the defendant safety audit company lost.

This article is the result of a motion for summary judgment filed on behalf of the defendant auditor which the court granted.

The plaintiff was a student at the defendant college, Whitman College, and also worked in the Outdoor Program at the college. While working the plaintiff was asked to bring down the ropes still on the climbing wall. She climbed up to a platform next to the wall and removed the ropes. She then “hooked” into the remaining rope intending to rappel suffering severe injuries to her spine.

The initial report prepared by the defendant auditors (meaning the individuals and the company the individual(s) worked for) was titled “Draft Risk Management Audit.” The report included extensive language about what the audit would and would not do and was quoted by the court.

The college hired the same auditor to investigate the accident. (Can you say conflict of interest?) The auditor submitted a report on his investigation into the accident. The report stated that the plaintiff had climbed above the Super Shut anchors which released the rope causing her to fall.

The court reviewed the accident report prepared by the defendant and made the following statement.

Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.

Summary of the case

The first argument the court reviewed was whether the plaintiff was an intended beneficiary of the work with the defendant auditor. The court quickly found that to be true. The Draft Audit stated the audit was being done for the college, employees, and students. The college hired the audit for the benefit of the college, students, and employees.

The second issue discussed was the scope of an audit. The court first went through the elements to prove negligence and what makes up the first part of the element’s duty, under Washington’s law.

There are four elements in a common law negligence claim in Washington: duty, breach, causation and damages. As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what risks is the obligation owed?”

Under Washington’s law, someone who inspects the premises of another does not become the insurer of anyone injured by the negligence of the inspection. In most states, an inspecting party is only “liable for undiscovered hazards which he or she undertook to discover in the first place.” Meaning, you are only liable for what you say you are going to discover and don’t.

Consequently, the defendant could not be liable, unless he had agreed to inspect the elements of the wall. The audit was directed at procedures and programs, not equipment. On top of that, even if the audit looked at equipment, it did not look at how that equipment was used or in this case, misused.

Because the audit was not directed at the equipment that caused the accident, the defendant auditor was dismissed from the suit.

So Now What?

1. If you are a college, with a climbing wall, it needs to be inspected by engineers.

2. If you are a college, do not create a conflict of interest by hiring the company that gave you a review to investigate an accident that the review might have missed. Again, can you say Conflict of Interest?

3. If you are any business do not have an accident investigated by anyone other than who your attorney or insurance company hires. Here, the defendant with the conflict of interest nailed the defendant college to the judgment wall with its report.

Because the report was not done by legal counsel, the report can be used by the plaintiff to prove the defendant was negligent. That, however, will not be too difficult since the court in this decision already came to that conclusion based upon the accident report. However, a report that was protected by privilege would not have hung the defendant.

Although the plaintiff is probably upset that one defendant was dismissed, they have to be happy with the decision because of this issue.

The initial outcome of this case is good; the company being paid to review the college was dismissed from the case. However, the long-term effects are multiple.

· Initially, the one defendant won, but only by sinking its co-defendants.

· Long term, colleges are going to be hesitant to build climbing walls because this case is going to settle or go to trial for a large amount of money. Spinal cord injuries are multimillion-dollar cases.

· The entire industry has to wise up. Contracts that are created by legitimate risk management firms will be signed in advance and have tons of disclaimer and indemnification language. However, the issue is not who can sue or defend who, but what are you getting for your money?

As a side note, this part of the Draft Audit was quoted by the court.

If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense.

Instead of a defense, it created a legal claim and proof of negligence…….

Relevant Cases:

Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry

Other Cases concerning Climbing Walls:

Gross Negligence beats a release…but after the trial

Michigan court upholds release in a climbing wall accident where injured climber sued his belayer for his injuries

Poorly written release gave the plaintiff’s the only chance they had to win

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.

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

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

Jim@Rec-Law.US

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

@2023 Summit Magic Publishing, LLC

G-YQ06K3L262

X (formerly known as Twitter) logo

Recreation Law logo

Stimulus

Facebook

Mastodon

Blue Sky Logo

Threads

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

WordPress Tags: News,lawsuit,accident,investigation,college,Foster,Alex,Kosseff,Dist,LEXIS,Wash,Plaintiff,Stephanie,Defendant,Claims,Negligence,beneficiary,Defenses,article,luck,decision,Outdoor,Recreation,Industry,judgment,auditor,student,Whitman,Program,platform,injuries,spine,auditors,individuals,Draft,Risk,Management,Audit,Super,Shut,statement,Thus,purpose,Summary,argument,employees,students,scope,Washington,causation,obligation,recognition,Whether,jury,threshold,Does,Under,premises,insurer,inspection,procedures,equipment,Again,Conflict,Interest,attorney,insurance,Here,conclusions,Although,outcome,defendants,Long,colleges,money,Spinal,cord,dollar,Contracts,disclaimer,participation,reputation,Instead,Relevant,Cases,Walls,Gross,Michigan,climber,GVzUUV,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer

Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

Posted: May 27, 2013 | Author: Recreation Law | Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Oklahoma, Release (pre-injury contract not to sue) | Tags: Artillery Hunt Riding Stables, Assumption of risk, Elizabeth M. Schmidt, Equine, Federal Tort Claims Act, Fort Sill, Horse, Negligence, OK, Oklahoma, Oklahoma City, Release, stable, Trail Ride, United States, United States district court, United States of America | Leave a comment

Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

ELIZABETH M. SCHMIDT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 85,545

SUPREME COURT OF OKLAHOMA

1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38

February 27, 1996, FILED

COUNSEL: Alan D. Rosenbaum, Lawton, OK, Reggie N. Whitten, Douglas A. Terry, MILLS & WHITTEN, Oklahoma City, OK, For Plaintiff.

Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, For Defendant.

JUDGES: KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur; WILSON, C.J., concurs in part and dissents in part.

OPINION BY: OPALA

OPINION

[*872] CERTIFIED QUESTIONS FROM A UNITED STATES COURT

Opala, J.

The United States District Court for the Western [**2] District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:

“1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?

2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?”

We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. We note that exculpatory clauses cannot relieve one from liability for fraud, [**3] willful injury, gross negligence or violation of the law. ¹

1 See infra notes 8 and 15.

ANATOMY OF THE FEDERAL LITIGATION ²

2 The material accompanying the certified questions consists of the parties’ pleadings and motions filed in the certifying court. The factual recitals in the anatomy of the federal litigation were gleaned from this material and from the briefs submitted to this court.

Elizabeth M. Schmidt [plaintiff or Schmidt] went to the Artillery Hunt Riding Stables [Stables] at Fort Sill, Oklahoma ³ to engage in recreational horseback riding. Before participating in this activity she executed a Rental Riding Agreement [contract]. The contract contained the following clause [exculpatory clause or clause]:

“In consideration for being allowed to participate in Horse Rental, I hereby release [**4] the Artillery Hunt Center and its employees and/or ride leaders . . . and the United States Government from any liabilities or claims arising from my participation. I agree that I will never prosecute or in any way aid in prosecuting any demand, claim or suit against the United States Government for any loss, damage or injury to my person or property that may occur from any cause whatsoever as a result of taking part in this activity.” [Emphasis supplied.]

3 The Stables are admittedly an instrumentality of the U.S. Army.

Schmidt claims that, during the ride, a “ride leader” employed by the Stables negligently rode up behind her, frightened her horse and caused it to throw her to the ground, then fall on and injure her.

[*873] Schmidt brought a negligent tort complaint against the United States ⁴ alleging that the latter (1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader. ⁵ By its summary [**5] judgment motion the United States interposed the exculpatory clause, by which it sought to defeat Schmidt’s claim.

4 Schmidt’s action invokes the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671 et seq. [HN1] By the FTCA’s terms the United States’ liability is measured according to the law of the state in which the wrongful act occurred. 28 U.S.C. § 2674.

5 Schmidt charges the United States with actual notice of the employee’s unfitness to lead the ride.

THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT

[HN2] While the actionability of state-law claims identified in the submitted questions may be tested when answering the queries posed, it is not this court’s province to intrude (by the responses to be given) upon the federal court’s decision-making process. Because this case is not before us for decision,we refrain, as we must, from applying the declared state-law responses to the facts elicited or to be determined in the federal-court litigation (whether [**6] made by evidence adduced at trial or by acceptable probative substitutes, called “evidentiary materials”, for use in the summary adjudication process). ⁶ The task of analyzing the impact of today’s answers must be and hence is deferred to the certifying court.

6 Brown v. Ford, Okl., 905 P.2d 223, 226 n. 3 (1995); Bonner v. Oklahoma Rock Corp., Okl., 863 P.2d 1176, 1178 n. 3 (1993); Shebester v. Triple Crown Insurers, Okl., 826 P.2d 603, 606 n. 4 (1992).

III

THE PARAMETERS OF THE CLAUSE’S ENFORCEABILITY

[HN3] By entering into an exculpatory agreement of the type dealt with here ⁷ the promisor assumes the risks that are waived. ⁸ [*874] While these exculpatory promise based obligations are generally enforceable, ⁹ they are distasteful to the law. ¹⁰ For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant ¹¹ from liability for the sought-to-be-recovered [**7] damages; ¹² (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; ¹³ and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. ¹⁴

7 For a discussion of the difference between a contract clause totally exempting one from culpability and one which merely limits the financial extent of that liability, see Elsken v. Network Multi-Family Sec. Corp., Okl., 838 P.2d 1007, 1008 (1992); Fretwell v. Protection Alarm Co., Okl., 764 P.2d 149, 151 (1988). In both of those cases a burglar alarm company sought to limit its liability for loss due to theft of customers’ property via a liquidated damages provision. The propriety of similar liability-limiting contract clauses is subject to an analysis grounded in contract law that lies outside the realm of tort jurisprudence. See MacNeil, Power of Contract and Agreed Remedies, 47 CORNELL L. Q. 495 (1962).

[**8]

8 [HN4] Express assumption of risk occurs in those cases where the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence. Thomas v. Holliday by and through Holliday, Okl., 764 P.2d 165, 168 n. 8 (1988); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1129 (La. 1988); Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780, 783 (1983). The terms of RESTATEMENT (SECOND) OF TORTS § 496B (1965) provide:

[HN5] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” [Emphasis added.]

For a discussion of the jurisprudential requisites for determining whether an exculpatory contract violates public policy, see infra Part IIIC. See also in this connection V. SCHWARTZ, COMPARATIVE NEGLIGENCE § 9.1 at 154 (1974). [HN6] Express consent, which might also be called “waiver” or “release”, will usually bar recovery by the plaintiff unless there is a statute or established public policy against it. Murray, supra at 1129. The two statutory provisions cited by Schmidt are inapposite here. The terms of the first, [HN7] 15 O.S.1991 § 212, provide:

“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another or violation of the law, whether willful or negligent, are against the public policy of the law.” [Emphasis added.]

This section forbids agreements relieving one from liability for fraud, willful injury or violation of the law. Its terms cannot be read to embrace contracts affecting liability for simple negligence. We assume — for want of contrary notice from the federal-court record — that in this case there is no fraudulent or willful conduct.

The terms of the second section, [HN8] 15 O.S.1991 § 212.1, provide:

“Any notice given by a business entity which provides services or facilities for profit to the general public and which seeks to exempt the business entity from liability for personal injury caused by or resulting from any acts of negligence on its part or on the part of its servants or employees, shall be deemed void as against public policy and wholly unenforceable.” [Emphasis added.]

[HN9] This section’s terms apply to promises imposed without the promisor’s adequate knowledge through explanation or sans consideration. That is not the case here because the exculpatory contract in suit clearly amounts to more than a posted notice.

[**9]

9 Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (1994); Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 145 (Vt. 1988); Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, 919 (1988); Rawlings v. Layne & Bowler Pump Company, 93 Idaho 496, 465 P.2d 107, 110 (1970); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 233 N.E.2d 22, 24 (Mass. 1968); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 926, 220 N.Y.S.2d 962 (1961).

10 Gulf C&S Ry. Co. v. Anderson, 120 Okla. 60, 250 P. 500, 502 (1926).

11 Colgan, supra note 9 at 145; Jones v. Dressel, 623 P.2d 370, 378 (Colo. 1981); Anderson, supra note 10 at 502.

12 Anderson, supra note 10 at 502.

13 Salt River Project Agr. v. Westinghouse Elec., 143 Ariz. 368, 694 P.2d 198, 213 (1985); Elsken, supra note 7 at 1010-1111.

14 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984). See also Thomas, supra note 8 at 168 n. 7; Fisk v. Bullard, 205 Okla. 502, 239 P.2d 424, 427 (1951); Anderson, supra note 10 at 502. See also in this connection Harris, supra note 9 at 909; Salt River, supra note 13 at 213; Belger Cartage Serv., Inc., v. Holland Const. Co., 224 Kan. 320, 582 P.2d 1111, 1119 (1978); Ciofalo, supra note 9 at 926. 15

[**10] [HN10]

The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. ¹⁵

15 Wolf supra note 9 at 528; Jones, supra note 11 at 376; Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944).

A. Clear and Unambiguous Description of Parties and Damages

[HN11] A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall [**11] fairly within the contemplation of, the parties. ¹⁶ The clause must also identify the type and extent of damages covered — including those to occur in futuro. ¹⁷

16 Anderson, supra note 10 at 502.

17 Anderson, supra note 10 at 502.

B. Bargaining Power’s Parity Level

[HN12] Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services. ¹⁸

18 Goldberg, supra note 15 at 174-175. See Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113, 1117 (W.D. Okla. 1976).

[**12] [*875] C. The Element Whose Presence Makes the Exculpation Not Violative of Public Policy ¹⁹

19 [HN13] In the context of an exculpatory clause’s validity, “public policy” means that which inhibits anything injurious to the good of all. The term is applied here in a sense broader than that used when scrutinizing for conformity to “public policy” wrongful-termination claims pressed by discharged at-will employees. Cameron & Henderson v. Franks, 199 Okla. 143, 184 P.2d 965, 972 (1947). For cases that deal with claims by discharged at-will employees see Groce v. Foster, Okl., 880 P.2d 902, 904 (1994); Gilmore v. Enogex, Inc., Okl., 878 P.2d 360, 364 (1994); Burk v. K-Mart Corp., Okl., 770 P.2d 24, 28-29 (1989).

[HN14]

While courts may declare void those portions of private contracts which contradict public policy, ²⁰ they must do so only with great caution. ²¹ Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public [**13] morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property. ²²

20 Hargrave v. Canadian Valley Elec. Co-op., Okl., 792 P.2d 50, 59 (1990).

21 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-818 (1941).

22 Shepard, supra note 21 at 251; Anderson v. Reed, 133 Okla. 23, 270 P. 854, 856 (1928). An example of an exculpatory clause injurious to public health is afforded by an agreement exonerating a common carrier from liability for negligence. See Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990, 996-997 (1920).

SUMMARY

[HN15] National jurisprudence teaches that parties may contractually allocate the risk of future harm. The exercise of this power is conditional; any agreement having as its purpose [**14] the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved. The parties must have bargained for their exchange on a level playing field — the level to be measured by the seriousness of the contract’s subject matter and the options available to the person giving up the right to sue. If the clause is to pass the test’s muster, the assumed obligation cannot be deemed to have brought about a result perceived as harmful to the principles of “public policy”. ²³

23 See supra note 19.

The validity of the Schmidt/Stables exculpatory clause in suit depends on the outcome of the fact-finding investigation to be conducted in the certifying court. ²⁴ If — under the test we announce today — that court should determine that any single requirement for the clause’s enforceability has not been met, its decision could not uphold the contract and exonerate the United [**15] States.

24 Promise-based obligations of the type dealt with here are treated as the promisor’s risk assumption. See supra Part III. [HN16] The terms of ART. 23, § 6, OKL.CONST., provide in pertinent part:

“The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” [Emphasis added.]

[HN17] The terms of ART. 23, § 8, OKL.CONST., provide:

Any provision of a contract, express or implied, made by any person, by which any of the benefits of this constitution is sought to be waived, shall be null and void.” [Emphasis added.]

Today we merely define the parameters of an exculpating clause’s enforceability. Whether, as applied to this case, the provision presents a disputed law question or also a disputed fact question is to be decided by the certifying court.

CERTIFIED QUESTIONS ANSWERED.

KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur;

WILSON, [**16] C.J., concurs in part and dissents in part.

WordPress Tags: Schmidt,States,America,Okla,LEXIS,ELIZABETH,Plaintiff,Defendant,SUPREME,COURT,OKLAHOMA,February,COUNSEL,Alan,Rosenbaum,Lawton,Reggie,Whitten,Douglas,Terry,MILLS,Patrick,Ryan,Attorney,Ronny,Pyle,Assistant,Western,District,JUDGES,KAUGER,HODGES,LAVENDER,SIMMS,HARGRAVE,OPALA,SUMMERS,WATT,WILSON,OPINION,QUESTIONS,FROM,Uniform,Certification,Whether,clause,injury,Rental,Agreement,negligence,entrustment,preconditions,enforcement,policy,clauses,fraud,violation,ANATOMY,FEDERAL,LITIGATION,recitals,Artillery,Hunt,Stables,Fort,Sill,Horse,Center,employees,leaders,Government,liabilities,participation,person,Emphasis,Army,leader,tort,complaint,judgment,action,Claims,FTCA,employee,NATURE,FUNCTION,province,responses,decision,adjudication,task,impact,Brown,Ford,Bonner,Rock,Corp,Shebester,Triple,Crown,Insurers,PARAMETERS,obligations,difference,health,morals,confidence,administration,discussion,extent,Elsken,Network,Multi,Fretwell,Protection,Alarm,burglar,theft,customers,provision,analysis,realm,MacNeil,Power,Contract,Remedies,CORNELL,assumption,injuries,Thomas,Murray,Ramada,Inns,Anderson,Ceccardi,Ohio,RESTATEMENT,SECOND,TORTS,requisites,Part,IIIC,connection,SCHWARTZ,COMPARATIVE,waiver,recovery,statute,agreements,facilities,servants,knowledge,explanation,amounts,Wolf,Colgan,Agway,Harris,Walker,Rawlings,Layne,Bowler,Pump,Company,Idaho,Henry,Mansfield,Academy,Mass,Ciofalo,Tanney,Gyms,Gulf,Jones,Dressel,Colo,Salt,River,Project,Westinghouse,Elec,Ariz,Shepard,Farmers,Insurance,Fisk,Bullard,Belger,Cartage,Serv,Holland,Const,avail,Manhattan,Goldberg,Clear,Unambiguous,Description,Parties,Damages,omissions,agent,servant,contemplation,Level,Courts,factors,importance,Trumbower,Sports,Club,Supp,Element,Whose,Presence,Makes,Exculpation,Violative,Public,context,termination,Cameron,Henderson,Franks,Groce,Foster,Enogex,Burk,Mart,individuals,Canadian,Valley,Johnston,Watkins,Camp,Black,Gold,Petroleum,example,carrier,Pine,Belt,Lumber,Riggs,SUMMARY,National,purpose,exoneration,category,actor,options,obligation,outcome,fact,investigation,requirement,Promise,jury,exculpatory,enforceable,infra,upon,promisor,jurisprudence,supra,futuro,tortfeasor

Release for bicycle tour wins on appeal but barely

Posted: May 20, 2013 | Author: Recreation Law | Filed under: Cycling, Florida, Release (pre-injury contract not to sue) | Tags: Defendant, Florida, Law, Lawsuit, Negligence, Plaintiff, Trial court, United States | Leave a comment

Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)

If the release were written properly, the appeal would not have occurred; maybe the lawsuit would not have occurred.

The decision from the Florida Court of Appeals looks at a release sued by the defendant bicycle tour company. An accident occurred when the front wheel fell off the bike injuring the plaintiff.

There are few facts in the decision. It is not clear if it was purely a bike rental or was a bike tour that included bikes. It appears it was a tour. Nor does the case describe how the wheel fell off or the injuries of the plaintiff.

At the trial court, the case went to trial with a jury decision for the defendant.

The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters.

Post-trial the plaintiff filed several motions to have the jury verdict reversed for a new trial. A new judge granted the motion for a new trial finding the release at issue failed to contain specific unambiguous language needed under Florida’s law for a release to be valid.

The defendant appealed.

Summary of the case

The plaintiff’s argument on appeal was the language of the release at issue did not have the necessary language. However, the court found the argument and the cases cited by the plaintiff to not be similar to the release at question.

Releases are valid under Florida’s law: “… waivers or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal.”

The release in question used the word negligence and relieved the defendant of all liability.

So Now What?

The entire release quoted by the court consisted of one paragraph. It is not clear if the release was longer or contained any other language; however, based on how the court quoted the release it does not appear to be.

The release squeaked through after spending thousands of dollars to defend and probably three or more years of time.

If you have your release properly written it is going to be much longer than one paragraph. That length may add three or more years to your life that do not contain litigation.

Plaintiff: Mark Schecter and Karen Schecter

Defendant: Travent, Ltd.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant. The release was sufficient to stop the claims.

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

WordPress Tags: Release,bicycle,Travent,Schecter,LEXIS,lawsuit,decision,Florida,Court,Appeals,defendant,accident,bike,plaintiff,rental,bikes,injuries,jury,agreement,Schecters,negligence,Post,verdict,Summary,argument,Releases,waivers,clauses,paragraph,dollars,length,life,litigation,Mark,Karen,Claims,Defenses,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Tour,three

Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)

Posted: May 13, 2013 | Author: Recreation Law | Filed under: Legal Case, Michigan, Summer Camp, Youth Camps | Tags: Camp, Camp Sea-Gull, Capture the Flag, duty, Emily Lisner, Inc., Jonathan C. Gamze, Julie Gamze, Michigan, Michigan Court of Appeals, Negligence, Proximate Cause, Standard of review, Summer Camp, William P. Schulman, Youth Camp | Leave a comment

To Read an Analysis of this decision see

Camp held liable when a camper misunderstands instructions, and plaintiff was not paying attention.

Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)

JONATHAN C. GAMZE, as Next Friend for JULIE GAMZE, a Minor, Plaintiff-Appellant, v CAMP SEA-GULL, INC. and WILLIAM P. SCHULMAN, Defendants-Appellees, and EMILY LISNER, Defendant.

No. 299433

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 1227

June 21, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 09-054822-NO.

CORE TERMS: camper, flag, flagpole, towel, capture, foreseeable, premises liability, team’s, material fact, circle, lying, pole, matter of law, genuine issues, proximate cause, proximately, counselor, favorable, causation, grabbing, owed, top, pick, order granting, negligence claim, final order, proper instructions, dangerous condition, foreseeability, depositions

JUDGES: Before: WILDER, P.J., and HOEKSTRA and BORRELLO, JJ.

OPINION

Per Curiam.

In this case, plaintiff appeals from an order granting summary disposition in favor of defendants¹ Camp Sea-Gull, Inc. (the Camp) and William Schulman, a part-owner and associate director of the Camp, on plaintiff’s claims of negligence and premises liability. Because genuine issues of material fact remain regarding plaintiff’s negligence claim, we affirm in part, reverse in part, and remand.²

1 Emily Lisner was dismissed by stipulation and is not involved in this appeal. Thus, our reference to “defendants” will refer to appellees.

2 Defendants have raised a question as to this Court’s jurisdiction over the appeal. Plaintiff filed the initial appeal of the order granting summary disposition before Lisner had been dismissed from the case. Accordingly, this Court dismissed the appeal for lack of jurisdiction. Gamze v Camp Sea-Gull, Inc, unpublished order of the Court of Appeals, entered July 13, 2010 (Docket No. 298202). We informed plaintiff, however, that he could seek to appeal the grant of summary disposition by filing a delayed application for leave under MCR 7.205(F). Defendants [*2] subsequently requested that the trial court tax their costs against plaintiff. On July 29, 2010, the trial court denied this motion except for a $20 motion fee. Plaintiff then filed the current appeal. The arguments on appeal do not concern the motion for costs but, instead, are exclusively aimed at the trial court’s decision to grant the motion for summary disposition.

When an appeal of right is dismissed for lack of jurisdiction or is not timely filed, an appellant may file an application for leave to appeal up to 12 months after entry of the final order to be appealed. MCR 7.205(F)(1) and (F)(3). Plaintiff filed this appeal on August 2, 2010, less than 12 months after May 21, 2010. Given the trial court’s notation in the orders below concerning which order was–or was not–intended as the final order in this case, we treat plaintiff’s claim of appeal as an application for leave and hereby grant it. MCR 7.205(D)(2); see also In re Morton, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).

I. BASIC FACTS

Julie Gamze and defendant Emily Lisner were both campers at the Camp in the summer of 2007. As part of a “Pirate Day” on July 15, 2007, the Camp organized a game of capture the flag on a [*3] large field divided into two halves. In the middle of each half was a circle, and in the middle of the circle was a five-foot tall flagpole³ with a colored flag on top. While the object of the game was to “capture” the opposing team’s “flag,” the “flag” to be seized was actually a piece of cloth or towel lying on the ground at the base of the flagpole. Participants were not supposed to attempt to capture the flag on top of the pole or the pole itself. Lisner testified that no one told her that the flagpole flag was not the correct flag to capture, and the counselor who explained the rules does not remember if she clarified that point. In the course of the game, Lisner grabbed the flagpole and began running with it. Gamze was running nearby, being chased by another camper, and the metal stake at the bottom end of the flagpole hit her in the mouth. She lost one tooth, and three others were broken.

3 The flagpole also had a metal tapered end or “stake” so it could be inserted and anchored into the ground.

Plaintiff filed suit against defendants, alleging negligence and premises liability. The trial court granted defendants’ motion for summary disposition and stated the following at the hearing:

I [*4] can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.

Anything that they did or failed to do was not the proximate cause of this Plaintiff’s injury. And, I don’t believe there is any material facts that are in dispute that would prevent the granting for the Motion for Summary Disposition under [MCR 2.116(C)(10)]. So that’s my ruling.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). When reviewing a motion brought under MCR 2.116(C)(10), we consider the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). A grant of summary disposition “is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 552.

III. ANALYSIS

A. NEGLIGENCE

The elements of a negligence claim are “(1) a duty [*5] owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). It is not entirely clear which element(s) the trial court found to be deficient in plaintiff’s claim. While only explicitly referencing causation, the trial court’s statement seemed to encompass three of the elements: duty (“I can’t see where this individual’s grabbing of the marker was a foreseeable event . . . .”; breach (“I can’t see where the [defendants] did anything wrong.”; and causation (“[a]nything that they did or failed to do was not the proximate cause of this Plaintiff’s injury.”). With the damages element not being disputed, we will address the remaining three elements.

The question of whether a defendant owes a plaintiff a duty of care is a question of law. Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.” In re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479 Mich 498, 505; 740 NW2d 206 (2007). “This inquiry [*6] involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” Id. (quotation marks omitted). But the most important factor is the relationship of the parties. Id.

Here, we conclude that defendants owed Gamze a duty to provide proper instructions for the game of “capture the flag.” In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole.⁴ Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.

4 This is especially foreseeable when the opposing team’s goal is to pursue and tag the flag carrier.

Once the existence of a duty toward Gamze is established, the reasonableness of the defendant’s conduct is a question [*7] of fact for the jury. Arias v Talon Development Group, Inc, 239 Mich App 265, 268; 608 NW2d 484 (2000). Thus, the next question is whether there is a genuine issue regarding whether defendants breached this duty by failing to provide the proper instructions.

In support of their motion for summary disposition, defendants provided, inter alia, the unsworn “statements” from two people who were camp counselors at the time of the accident. However, these statements do not comply with the requirements of MCR 2.116(G)(2) since they are not “affidavits, depositions, admissions, or other documentary evidence,” and consequently cannot be considered. Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich App 309, 321; 575 NW2d 324 (2009). Moreover, even if the statements were considered, they would not support granting defendants’ motion for summary disposition. The first statement was by Leah Glowacki, who was the programming counselor at the time of the incident. With regard to the instructions, she stated, “I instructed the campers to attempt to obtain the flag that was inside the circle on the opposite side of the field from where their team was stationed.” This statement does not establish [*8] that the correct instructions were given. In fact, when viewing the statement in a light most favorable to plaintiff, one could conclude that Glowacki’s instructions might possibly have been construed by at least some campers as a directive to remove the flag itself instead of the towel on the ground. The other statement was provided by Stephanie Plaine, who stated that she instructed the campers “to capture the team’s flag on the other side of the field which was located inside the circles drawn onto the grass.” Again, this statement does not specify that the instruction was to get the towel lying next to the flag.

Defendants did properly submit the depositions of six people, however. But none of the submitted testimony indicated that the campers were instructed to ignore the flagpole and only pick up the towel on the ground: Gamze could not recall what specific instructions were given; Lisner testified that she did not hear any specific instructions to take the towel on the ground instead of the pole itself; Jack Schulman and William Schulman both admitted that they did not hear the instructions that Glowacki and Plaine provided; Marsha Schulman admitted that she was not present when [*9] the instructions were given; and Plaine, herself, testified that she could not recall the specifics of the instructions that she gave. Therefore, when viewing all of this evidence in a light most favorable to plaintiff, there is a question of material fact on whether the Camp instructed the campers to only take the towel lying at the base of the flagpole instead of the flag or flagpole itself.

Finally, the trial court indicated that it found as a matter of law that defendants could not have proximately caused plaintiff’s injuries. But proximate cause is a factual question for the jury unless reasonable minds could not differ. Lockridge v Oakwood Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences. Campbell v Kovich, 273 Mich App 227, 232; 731 NW2d 112 (2006). Here, a reasonable juror could have concluded that a failure to instruct the campers properly could foreseeably result in an enthusiastic camper grabbing and removing the flagpole in order to “capture the flag” affixed to the top of it. And because the object of the game was for the camper [*10] to run the flag back to her team’s territory while other campers tried to tag her, a reasonable person could conclude that it was foreseeable that other campers might be hit and injured by the five-foot tall flagpole as it was being moved. Therefore, the trial court erred by holding as a matter of law that defendants could not have proximately caused Gamze’s injuries.

B. PREMISES LIABILITY

We now turn to plaintiff’s premises liability claim. Because Gamze was an invitee on the Camp’s premises, defendants owed a duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.'” Benton v Dart Properties, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006), quoting Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001) (emphasis added). Plaintiff must show that the duty was breached and that the breach proximately caused her injuries. Benton, 270 Mich App at 440.

However, Gamze was not harmed by a dangerous condition “on the land.” Instead, she was harmed when Lisner pulled the flagpole out of the ground and began running with it. The danger arose solely because of the actions of the participants and not because of [*11] an inherent condition of the premises. Thus, plaintiff’s claim properly sounds in negligence, not premises liability.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs are taxable pursuant to MCR 7.219, neither party having prevailed in full.

/s/ Kurtis T. Wilder

/s/ Joel P. Hoekstra

/s/ Stephen L. Borrello

G-YQ06K3L262

http://www.recreation-law.com

WordPress Tags: Gamze,Camp,Gull,Mich,LEXIS,JONATHAN,Friend,JULIE,Minor,Plaintiff,Appellant,WILLIAM,SCHULMAN,Defendants,Appellees,LISNER,Defendant,COURT,APPEALS,MICHIGAN,June,NOTICE,OPINION,ACCORDANCE,RULES,OPINIONS,UNDER,STARE,DECISIS,PRIOR,HISTORY,Charlevoix,Circuit,TERMS,camper,flagpole,premises,team,fact,counselor,causation,negligence,instructions,JUDGES,WILDER,HOEKSTRA,BORRELLO,Curiam,disposition,owner,director,stipulation,Thus,reference,jurisdiction,Docket,arguments,decision,August,Given,notation,Morton,BASIC,FACTS,campers,Pirate,foot,cloth,Participants,tooth,marker,event,injury,Motion,Summary,STANDARD,REVIEW,Auto,Club,Group,Burchell,admissions,Brown,judgment,ANALYSIS,Case,Consumers,Power,statement,Cummins,Robinson,Question,Fourteenth,Dist,Texas,relationship,quotation,factor,Here,goal,carrier,Once,existence,jury,Arias,Talon,Development,statements,counselors,accident,requirements,affidavits,Marlo,Farmers,Moreover,Leah,Glowacki,incident,directive,Stephanie,Plaine,Again,instruction,testimony,Jack,Marsha,specifics,injuries,Lockridge,Oakwood,Hosp,Proximate,consequences,Campbell,Kovich,juror,failure,person,Benton,Dart,Properties,Lugo,Ameritech,Corp,emphasis,Instead,danger,proceedings,Kurtis,Joel,Stephen,months,five,three,whether

C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims

Posted: May 13, 2013 | Author: Recreation Law | Filed under: Colorado | Tags: Children Youth and Family, Colo, Colorado, Definition, Negligence, parent, Waiver | Leave a comment

C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims

(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:

(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;

(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;

(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.

(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;

(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and

(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.

(2) As used in this section, unless the context otherwise requires:

(a) “Child” means a person under eighteen years of age.

(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.

(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.

(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

WordPress Tags: Legislative,declaration,definitions,waiver,negligence,policy,Children,Public,entities,Colorado,protection,lawsuits,Parents,decisions,custody,participation,decision,treatment,education,youth,Colo,context,Child,person,purposes,guardianship,custodian,omission,behalf

In Nebraska a release can defeat claims for gross negligence for health club injury

Posted: April 8, 2013 | Author: Recreation Law | Filed under: Health Club, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Defendant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Plaintiff, Precor, Precor USA, Release, Treadmill | Leave a comment

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

Manufacturer of the health club equipment was able to squeak out a win by making sure the equipment met the applicable standards when the treadmill was manufactured.

This case is a health club fitness which is interesting because it covers several legal issues in ways that most courts will not. It also points out some simple things you can do to keep yourself out of court or losing in court.

A husband and wife, plaintiffs, joined a health club. After five weeks at the club the wife, went to get on a treadmill. She did not notice it was running and upon stepping on the treadmill she was thrown backwards into an elliptical trainer. The plaintiff had an injured hand and chest from the accident.

The area around the treadmill was allegedly, not well lit, however the plaintiff had not complained about the lighting. When she stepped on the treadmill she looked at the control panel but did not look at the belt. The treadmill was in a row of treadmills and the treadmills on either side of the treadmill in question were running. The plaintiff also said the treadmill area was loud.

The plaintiff had been using treadmills for 21 years. She had been using treadmills at the defendants approximately five times a week for five weeks and had used the treadmill in question 10 to 15 times. When she joined the defendant health club she received instructions from a trainer, but she stated she did not need instructions on how to operate a treadmill. The plaintiff also had a treadmill at home.

When the plaintiff and her husband joined the defendant health club she signed two documents which contained releases. The first was titled Membership agreement what had a release that included the word negligence in the language of the contract. The second form was a health history questionnaire which was signed by the plaintiff and also included release language.

The plaintiff and her husband sued the manufacturer of the treadmill, Precor, and the health club, Lakeside Wellness Center for her injuries. She claimed both defendants were negligent and were grossly negligent. Precor was allegedly negligent in making a treadmill without proper safety features and the health club was liable for not providing adequate lighting around the treadmill. There was also a claim that the health club had modified the treadmill belt so that it was unsafe.

The trial court granted both of the defendant’s motions for summary judgment. The plaintiff appealed saying the trial court erred in:

(1) granting summary judgment in favor of Lakeside and Precor;

(2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and

(3) holding that Palmer assumed the risk of using the treadmill.

Summary of the case

The court first looked at the issue of the release. The court ignored the issues of whether the release worked against negligence and reviewed the issues of releases and claims of gross negligence. However before starting its analysis, it dismissed Precor’s argument that it was a third party beneficiary of the release.

A third party beneficiary of a contract is usually identified as someone who is not named in the agreement, but obvious to all parties that they are to receive benefits of the agreement. An example would be a contract between a health club and a supplier of fitness equipment. The third party beneficiaries of that agreement would be the membership of the health club. When the third party beneficiary is not obvious in the agreement then the third parties as usually not construed as beneficiaries and do not have an interest in the contract.

In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Here the court found that the agreement between a member and the health club did not identify the defendant manufacture by name or by any other identification. Because of that, the manufacturer could not be a third party beneficiary of the release.

Court then went back to the issue of the claim of gross negligence. Under Nebraska law gross negligence is defined as

Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

Under Nebraska law the court could rule on whether the allegations of the complaint give rise to gross negligence. Here the court found the allegations did not. Inadequate lighting and the installation of a new belt on the treadmill did not meet the level needed to prove gross negligence.

Precor, the making of the treadmill in its motion to the trial court presented an affidavit stating that at the time the treadmill was made the treadmill “met or exceeded the voluntary guidelines set by the American Society for Testing and Materials” The affidavit included photographs of the treadmill to show what handrails existed and the fact that treadmill came with a clip that could be attached to the user’s clothing. If the clip was pulled it would disconnect and stop the treadmill. The treadmill was also made 7 years prior to the accident.

The plaintiff hired an expert who stated that the treadmill “should” have various safety features that were not on the treadmill. The court took note that the plaintiff’s expert did not say the treadmill had to have, did not speak in absolutes with regard to the safety features. Because the plaintiff’s expert was hesitant or could not be explicit on what was missing the court held that Precor was not negligent.

A third defense was raised on appeal, assumption of the risk, by the defendants. Because the court had dismissed the claims raised by the plaintiff already, the court did not get into that defense.

So Now What?

Obviously the better your release the greater your chances of winning. However there are several other issues here that you should pay attention too.

The plaintiff claimed that her injury was due to the fact the new belt on the treadmill did not contain markings that would indicate the treadmill was moving. If you replace or repair something, make sure you use equipment that meets the manufactures specs when you bought the machine or better. If the manufacturer had markings on the treadmill belt that indicated that the belt was moving you need to install a replacement belt that has similar markings.

Moreover, if you have the opportunity, whether or not the original belt was marked, to install a belt with markings, why not.

The assumption of the risk defense was not discussed by the court in its analysis, but was definitely part of the facts. In this case the defense team was able to elicit a lot of treadmill experience from the plaintiff. Many times, after an accident, the plaintiff will change their story. Getting experience or history up front is always safer.

And why not!

Why not include in your release language that protects everyone you can from litigation. There was a claim by the husband that one of the people running on the treadmill next to the one at issue had left that treadmill on. In some states, that would be enough to bring that other gym member into the suit. Write your release to keep you out of a lawsuit, also write it to keep everyone associated with your or that you benefit from out of the lawsuit. Just because you might not be named as the negligent party, you can still be brought in by the person who is named as the defendant. Protect you, your employees, other guests, visitors, volunteers, sponsors, and manufacturers dependent on what you do.

How many new customers are going to sign up as members if the word gets out you allowed one of them to be sued for an accident to another member.

If you do hear of problems from your guests or members, you need to respond. One issue that would have made the outcome different in this case would be a stack of “accident forms” or complaints about the lighting. If the plaintiff could prove that the lighting was bad because other people had complained about it or blamed it for their injuries, then I believe this would have had a different outcome. Don’t collect paperwork, solve problems.

Plaintiff: April Palmer

Defendant: Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release, Assumption of the Risk

Holding: for the defendants

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Lakeside Wellness Center, Alegent Health, Precor, Inc., Negligence, Gross Negligence, Health Club, Release, Fitness Center, Treadmill,

WordPress Tags: Nebraska,negligence,health,injury,Palmer,Lakeside,Center,LEXIS,Manufacturer,equipment,treadmill,husband,wife,plaintiffs,trainer,plaintiff,chest,accident,area,panel,treadmills,defendants,defendant,instructions,Membership,agreement,history,questionnaire,Precor,injuries,judgment,waiver,Summary,analysis,argument,beneficiary,example,supplier,beneficiaries,stipulation,provision,instrument,Here,member,identification,Court,Under,Gross,absence,performance,Whether,definition,allegations,complaint,Inadequate,installation,affidavit,guidelines,American,Materials,handrails,fact,user,absolutes,assumption,attention,markings,specs,machine,Moreover,team,Many,litigation,Write,lawsuit,Just,person,Protect,employees,guests,visitors,manufacturers,customers,outcome,complaints,paperwork,April,Alegent,Claims,Defenses,Release,Risk,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Outside,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Club,five,weeks,third

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

Posted: April 8, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Health Club, Legal Case, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Appeal, Appellant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Precor, Release, Summary judgment, Treadmill, Waiver | Leave a comment

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.

No. S-10-974.

SUPREME COURT OF NEBRASKA

281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

June 24, 2011, Filed

PRIOR HISTORY: [***1]

Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.

DISPOSITION: AFFIRMED.

HEADNOTES

1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.

4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.

5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.

6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.

COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.

David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.

Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.

JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.

OPINION BY: HEAVICAN

OPINION

[**847] [*781] Heavican, C.J.

INTRODUCTION

The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.

FACTUAL BACKGROUND

Palmer’s Accident.

Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.

This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.

Palmer’s Familiarity With Treadmills.

During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.

Palmer’s Membership Agreement and Health History Questionnaire.

At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:

WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.

The health history questionnaire signed by Palmer stated in relevant part as follows:

1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .

2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .

Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.

ASSIGNMENTS OF ERROR

Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.

STANDARD OF REVIEW

[1] [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. ¹

1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).

[2] [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. ²

2 Id.

ANALYSIS

Waiver and Release.

Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.

[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. ³ In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.

[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. ⁴

3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).

4 Id. at 686, 789 N.W.2d at 267.

A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.

Lakeside’s Gross Negligence or Willful and Wanton Conduct.

At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.

Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.

[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. ⁵ Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. ⁶ [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. ⁷ We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.

5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).

6 Id.

7 Id.

Precor’s Negligence.

We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.

In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.

In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.

In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.

In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that

based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.

Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.

Assumption of Risk.

Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.

CONCLUSION

The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.

AFFIRMED.

Wright and Miller-Lerman, JJ., not participating.

WordPress Tags: Palmer,Lakeside,Center,LEXIS,April,Appellant,Alegent,Health,Precor,Appellees,SUPREME,COURT,NEBRASKA,June,PRIOR,HISTORY,Appeal,District,Douglas,JOSEPH,TROIA,Judge,DISPOSITION,HEADNOTES,Summary,Judgment,Error,inferences,Contracts,Parties,Intent,beneficiaries,stipulation,provision,instrument,Negligence,Words,Phrases,Gross,absence,performance,Whether,definition,COUNSEL,Heather,Voegele,Andersen,Brenda,George,Koley,Jessen,David,Welch,Ashley,Dieckman,Hogan,Ernst,Bachman,Albert,Engles,Cory,Kerger,Ketcham,Olson,Keith,JUDGES,HEAVICAN,GERRARD,STEPHAN,MCCORMACK,MILLER,LERMAN,OPINION,INTRODUCTION,treadmill,FACTUAL,BACKGROUND,Accident,husband,November,March,workout,Unaware,machine,panel,area,treadmills,woman,gyms,instruction,trainer,testimony,Membership,Agreement,Questionnaire,WAIVER,RELEASE,attendance,limitation,participation,equipment,facilities,transportation,injury,heirs,executors,administrators,officers,directors,employees,agents,successors,Releasees,action,Further,theft,machinery,addition,payment,injuries,omission,strength,death,knowledge,dangers,chest,Both,ASSIGNMENTS,STANDARD,REVIEW,Wilson,Fieldgrove,ANALYSIS,argument,waivers,instances,misconduct,beneficiary,Podraza,Century,Physicians,Authorities,status,Willful,Wanton,Conduct,virtue,allegations,markings,installation,Bennett,Labenz,fact,handrails,incident,response,affidavit,director,product,development,Greg,guidelines,American,Materials,specifications,Though,user,precaution,cord,consultant,mechanisms,mechanism,absolutes,references,compliance,Assumption,Risk,assignment,CONCLUSION,appellate,pleadings,whom,deducible,third,appellee,hereby,behalf

Colleges, Officials, and a Ski Area are all defendants in this case.

Posted: March 25, 2013 | Author: Recreation Law | Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Colorado, Duty of care, Edward Grees, Federation Internationale de Ski, FIS, Giant Slalom, Inc., Jeffrey Pier, Jiminy Peak, Jimmy Peak, Jimmy Peak Mountain Resort, Kelly Brush, Massachusetts, Massachusetts Ski Safety Act, Middlebury College, MSSA, NCAA, Negligence, Oyestein Bakken, Ski, Ski Resort, St. Lawrence University, United States Ski and Snowboard Association, USSA, Williams College, Williams College Outing Club, Williams Winter Carnival | Leave a comment

Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204

MA Ski Safety Act and a release prevent the plaintiff’s suit.

As the court said, this is a sad case; the plaintiff was a student ski racer. She hit a lift tower during a race and became a paraplegic. She sued the ski area, Jimmy Peak Mountain Resort, Williams College, its coaches and several other officials of the race.

The race was part of a weekend Williams Winter Carnival. The carnival was at Jimmy Peak and included ski races. The plaintiff examined the Giant Slalom course. She exited the course during a run and struck an unprotected lift tower. The factual issues resolved around whether the tower was supposed to be protected by B-Netting (the red netting you see on the sides of ski races) or padding.

The race was on a homologated hill (a slope that met FIS regulations). The race organizers prepared a plan for the netting on the course which showed the netting in the area where the plaintiff left the course. When the plaintiff left the course, there was no netting to slow her down or stop her.

The plaintiff argued the “plan” was a requirement to run the race as required by FIS. The defendants argued the plan was where safety equipment might need to be necessary. The B-netting was not set up according to the plan.

Summary of the case

The plaintiff claimed the defendant ski area was liable for “…negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).”

The court fist looked at the definition of Negligence and what the plaintiff must prove under Massachusetts law:

To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this damage.

The court reading the MSSA found the act served two “somewhat contradictory purposes “(1), to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety.”

Reading the act the court found the duty that caused the plaintiff’s injuries was on the plaintiff, not the ski area. The lift tower was off the ski trail and therefore, under the MSSA the ski area had no duty to set up netting or pad it. If the netting had been set up voluntarily, then the court found there would still be no liability because negligence in a voluntary act does not create liability under the MSSA.

Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features.

The court then looked at the plaintiff’s claims that the agreements of the college to use the ski area which was enveloped in two contracts created contractual duties that the defendant ski area breached. Under Massachusetts law, a tort can be created from a contractual relationship. (This is a minority view in most states.) However, the court could not find language in the contracts that created a duty to undertake steps to keep the competition safe as possible.

The court found that the defendant ski area had not been negligent and had not violated a duty to the plaintiff and dismissed the defendant Jimmy Peak Ski Area.

The court then looked at the remaining defendants, the colleges and the race officials, most of whom were employees of the colleges. These defendants relied upon the release as their defense. The release was required by the USSA (United States Ski and Snowboard Association) to race in USSA events, which this race was. The release had a venue clause that required Colorado law be applied to interpret the release. Choice of law provisions (jurisdiction and venue clauses) absent substantial Massachusetts public policy reasons are upheld in Massachusetts.

The court then examined the release under Colorado law and found the release to be enforceable. The plaintiff argued the release was ambiguous. The waiver was clear to the signor that signing the release waived all claims against the USSA. The USSA waiver listed every possible person to be protected by the release.

United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.”

Consequently, the waiver protected the remaining defendants. The third party defendants were also released by the waiver because their liability was contingent on the liability of the first party defendants. If the first party defendants were not liable, the third party defendants could not be liable.

The final argument the court reviewed was the claim the actions of the defendants amounted to gross negligence. Under Colorado law a waiver does not protect against gross negligence.

…under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence.

The court defined gross negligence as “Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than willful, wanton and reckless conduct.”

The court found the defendants had not acted in a way that was gross negligence, and no jury could find gross negligence on the part of any defendants.

There is no evidence in the record, and indeed, no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most, there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.

So Now What?

The first issue was what was the plan? Actually, a point that was not addressed in the decision which should be addressed here was why was there a plan?

How can you create a plan, call it a safety plan and not execute it 100%? If it just a draft, or if it is just ideas, you better label it that way. You cannot create documents like that, that are not going to come back and fry you.

Paperwork is the easiest way for a plaintiff to find something to prove you did something wrong. If your paperwork says you will do something that you did not do, or not do something that you did, the plaintiff will work hard to connect it to the injury. You set your own standards, defined your duty to the customers and/or guests (future plaintiffs) and then violated, breached those duties you created.

The choice of laws clause, jurisdiction and venue clause, did not work as it normally would have in this case. The case was brought in federal court because there were parties to the suit from two different states (called diversity jurisdiction cases). No one seemed to want to argue the jurisdiction and venue clause in the release should be enforced. That is difficult to do in some diversity jurisdiction cases in federal court; however, it is not impossible. The case would have had the same outcome under Colorado law, whether or not it would have been filed at all in Colorado after being dismissed in Massachusetts is the question.

Another flaw in how the defendants could have provided more protection is there was not a separate release for the event or the race. Between the Williams College Outing Club, the ski area and the college, someone should have required the participants to sign a release for the event. It could have been based on the course, not all possible courses in the US. It could have named the colleges and their employees to provide better protection. It could have been based on the facts and law of Massachusetts.

It is sad when a young woman has her life upended and changed. However, the law is the law. As the court stated:

It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.

Plaintiff: Kelly Brush

Defendant: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race referee for a race

Plaintiff Claims: negligence or gross negligence, negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).

Defendant Defenses: Massachusetts Ski Safety Act and Release

Holding: For all Defendants

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

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

Outdoor Recreation Insurance, Risk Management and Law

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2013-2023 Summit Magic Publishing, LLC

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Jimmy Peak, Jimmy Peak Mountain Resort, Inc., USSA, FIS, Massachusetts Ski Safety Act, MSSA, United States Ski and Snowboard Association, Kelly Brush, Jiminy Peak, Inc., Williams College, Edward Grees, Oyestein Bakken, St. Lawrence University, Federation Internationale de Ski, Jeffrey Pier, St. Lawrence University, Middlebury College, Williams Winter Carnival, Williams College Outing Club, Giant Slalom, NCAA,

WordPress Tags: Colleges,Officials,Area,defendants,Brush,Jiminy,Peak,Mountain,Resort,Supp,Dist,LEXIS,plaintiff,student,racer,Jimmy,Williams,College,Winter,Carnival,Giant,Slalom,hill,organizers,requirement,equipment,Summary,defendant,violation,MSSA,Count,failure,duties,inspection,fist,definition,Negligence,Massachusetts,action,purposes,operators,survival,injuries,goal,agreements,Under,tort,relationship,competition,employees,USSA,States,Snowboard,Association,events,venue,clause,Colorado,Choice,jurisdiction,clauses,policy,waiver,person,subsidiaries,officers,directors,contractors,argument,agreement,consequences,Gross,inadvertence,jury,allegation,situation,decision,Paperwork,injury,customers,guests,plaintiffs,laws,outcome,Another,flaw,protection,event,Club,participants,woman,life,compassion,payment,pursuit,lawsuit,basis,tragedy,operator,accident,Edward,Grees,Oyestein,Bakken,Lawrence,Jeffrey,Pier,Barry,Bryant,Technical,Delegate,Federation,Internationale,complaint,contribution,Middlebury,Forest,Carey,Claims,Defenses,Release,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,NCAA,whether,third

Georgia does not have a lot of skiing, but you can rent skis there.

Posted: March 18, 2013 | Author: Recreation Law | Filed under: Georgia, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Defendant, GA, Georgia, Inc., Lawsuit, Negligence, Plaintiff, RDL, Rocky Mountain Ski Shop, Ski Rental, skiing, Summary judgment | Leave a comment

Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312

Release for renting skis stops litigation over failing of the binding to release.

In this case, the plaintiff rented skis from the defendant in Georgia. The plaintiff completed the rental agreement which included a fairly well-written release. The rental company from the decision, asked the proper questions to calculate the DIN setting which in this case was 5 ½.

The plaintiff took the rented equipment on a ski trip. He made several runs, falling “uneventfully” the first day. None of those falls released the plaintiff from the bindings. On the last run while attempting to stop he fell releasing one binding but not the other. The leg in binding that failed to release suffered the classic skiing injury, torn ligaments in the plaintiff’s knee.

After the injury, the ski rental shop tested the binding which the test showed the binding passed.

The plaintiff sued for “breach of warranty, breach of contract, and negligence” and the plaintiff’s spouse sued for loss of a consortium. The defendant used the defense of release, and the trial court granted the defense motion for summary judgment.

Summary of the case

The first area of the law the court spoke to was the fact the relationship between the plaintiff and the defendant were bailor-bailee. Normally, this term is applied to someone in possession of another’s property. A valet is the bailee of your car when you hand over the keys. You are the bailor, the legal owner who has given temporary possession to another.

Once the court determined the relationship between the parties, then the court could conclude that the relationship was governed by the rental agreement.

The court then found that the plaintiff had failed to produce any evidence of negligence upon the part of the defendant. Then in a footnote, the court found that if the plaintiff had found evidence of negligence, the plaintiff still would have been bound by assumption of the risk. The court then went back to release and stated that even if negligence had been shown, the release would have prevented the suit.

“…in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy.”

The court then concluded the release did just that.

The remaining claims of the plaintiff were dismissed based on the analysis or the release.

The court finished with this line.

It is difficult to envision how the waiver language here could have been any clearer.

So Now What?

Get a good release written. Have your clients sign the release. Make sure your equipment meets the standards of the industry and maybe if you are faced with this issue, you will see this short and sweat answer to any litigation.

Plaintiff: Mr. and Mrs. Benford, no first name was ever given

Defendant: RDL, Inc. d/b/a Rocky Mountain Ski Shop

Plaintiff Claims: breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium

Defendant Defenses: Release

Holding: For the defendant on the release

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2013-2023 Summit Magic Publishing, LLC

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Skiing, Ski Rental, RDL, Inc., Rocky Mountain Ski Shop, GA, Georgia,

WordPress Tags: Georgia,Benford,LEXIS,Fulton,Release,litigation,plaintiff,defendant,rental,agreement,decision,equipment,bindings,injury,ligaments,knee,negligence,spouse,consortium,judgment,Summary,area,fact,relationship,possession,owner,Once,footnote,assumption,injuries,policy,analysis,waiver,clients,Make,industry,Rocky,Mountain,Shop,Claims,Defenses,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,skis,bailor,bailee

Bad release and prepped plaintiff defeat motion for summary judgment filed by ski area

Posted: February 11, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, New York, Release (pre-injury contract not to sue), Ski Area, Snow Tubing | Tags: assumption of the risk, Express Assumption of the Risk, fling, Negligence, Release, Rocking Horse Ranch Corp, ski area, Tee Bar Corp., Tubing, tubing hill | Leave a comment

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682

Plaintiff argued she was “flung” with all employees and to the court, even though she had no proof except her own testimony.

Plaintiff, her husband and two children went to the defendant resort in New York. At the resort, she skied and tubed. During tubing, she was riding with her daughter in a double tube for several runs. She later switched to a single tube.

After riding to the top on the tube she claims she heard the lift attendants at the top talking about trying to get tubers to hit the back of the run out. She then claimed the lift attendant grabbed the rope attached to her tube, ran her back to the back of the top of the landing and ran forward flinging her down the hill. The plaintiff’s tube went through the deceleration area and struck the backstop at the back of the deceleration area causing her injury.

Plaintiff claims that, without warning, Frisher took the rope attached to her tube, ran her back towards the woods, then turned and ran her to the top of the hill and “flung” her down the hill. McDermott does not remember the incident at all and denies ever seeing a coworker “fling” a tuber down the hill. Frisher does not remember the incident and denies ever seeing anyone “fling” a tuber down the hill. Plaintiff struck the barrier at the top of the deceleration ramp.

After her injury, the plaintiff walked with a resort employee to the ski shop. She sat there for 10 minutes and refused additional medical care. She then went to her room. A resort employee and a nurse went to her room and suggested the plaintiff go to a hospital, but she declined. The next day she skied with her family and stayed at the resort until her reservation ended.

While she was at the resort, after her injury, the plaintiff allegedly told three resort managers about the incident, and that she had been flung down the tubing hill. Some of the resort managers remember talking to her, but most do not remember her stating that she was flung down the hill.

The court went through the work done by the resort to slow down tubers in the deceleration area. The resort uses rubber mats and straw to slow down tubers. The runs are checked by resort employees before they are opened to the public and are monitored during the runs. If guests are going too far through the tubing deceleration area, additional measures are taken to slow tubers down.

The plaintiff filed this complaint in federal district court in New York. The court stated the complaint was based on diversity jurisdiction meaning the plaintiff was not a resident of New York; however, that information is not stated in the opinion.

The defendant filed a motion for summary judgment and a motion to restrict medical testimony. The court ruled there was sufficient testimony to send to a jury, and the motion for summary judgment was denied.

Summary of the case

The court first looked at the defense of assumption of the risk. Under New York law, a person engaging in a sport assumes the inherent risk of the activity that flow from participation. A participant does not assume the risk that are not inherent or a risk increased by the defendant.

However, a participant does not assume risks that are the result of reckless or intentional conduct, risks “concealed or unreasonably increased” or risks that result in a “dangerous condition over and above the usual dangers inherent in the activity.”

In New York, whether the plaintiff assumes the risk is a question for the jury.

Generally, whether the plaintiff assumed a risk by participating in a sport is a question for the jury; dismissal of the complaint is appropriate only when the proof before the court reveals no triable issue of fact.

Here the plaintiff was able to create a triable issue of fact that the resort had increased her risk by flinging her down the slope. A triable issue of fact is one that there are issues or different versions of the facts from the plaintiff and defendant. The court cannot, is not allowed to decide, which one is correct so the issue must go to trial. Creating a triable issue of fact is the easiest way to defeat a motion for summary judgment. Because the facts are at issue, it does not matter what law is applied so the motion cannot be granted.

It may seem odd that a judge may eventually make the decision which he or she could not make earlier. At trial, each side is on equal footing and all the rules of trial are at play. Prior to that point in time, the footing may not be equal. As such for one party to win prior to trial, there must be nothing the other side can show that would change the decision. A triable issue of fact is one where one side is able to show there is an issue, and it must go to a full blow hearing of a trial and be reviewed by the trier of fact. The trier of fact in most cases is a jury, but if not jury, then the judge.

One interesting argument on the assumption of risk issue was the warning signs at the tubing hill. The plaintiff claims she never saw any warning signs. She also said she never saw the Willy Bags, padding at the tubing hill also.

The next argument was the plaintiff signed a release. The court quickly dismissed this argument because the release was poorly written. Under New York law, a release “must be plain and precise that the limitation of liability extends to negligence or the fault of the party attempting to shed its ordinary responsibility.” The court found the opposite in this case.

The next argument is rare to find in cases. The defendant argued that the injuries of the plaintiff were not proximately caused by the negligence of the defendant. Remember negligence has four requirements to be proved.

· A Duty

· Breach of the Duty

· Injury proximately caused by the breach of duty

· Damages

For the plaintiff to recover the injury she received must have been due to the breach of duty. In this case, her injuries had to have been caused because the defendant’s employee “flung” her down the hill. That means there must be a connection between her injury and what the defendant did.

The basis of the defense was the resort had tried to recreate the incident which caused the plaintiff’s injuries and could not. The plaintiff rebutted this argument with an expert witness who argued based on the facts as stated by the plaintiff; she could have slid to the back wall of the deceleration area. The court sort of looked at the test done by the resort as lame.

The argument made by the defendant was not supported by the defendant in its motion.

The court also looked at the defendant’s arguments that certain medical information should be precluded from the trial; however, that will not be covered here.

So Now What?

Warning Signs: Put into your release that the plaintiff agrees to read and understand all warning signs. Signs must also be placed in a position you cannot help but see them. Signs should be along the path from where you sign in and pay to the lift or from where you pick up your tube to the lift. Places where you cannot argue, you did not see the signs.

You also need to prove the signs were there. Just like the log books of lift attendants, have the tubing lift attendants check for and log that all the signs were up and readable before the hill was open.

Although the facts helped argue assumption of the risk, the plaintiff had equal arguments that the risk was changed or increased by the defendant. As I have stated in the past, the best way to prove assumption of the risk is to have it in writing or video and prove the writing with a signature. Here the release was specifically cited by the court as not having any assumption of risk language in it.

The release was just plain bad.

If you want to recreate the events giving rise to a lawsuit, you cannot do it yourself. You must hire competent outside experts to do it. Here the court looked at the test by hardly even commented on it meaning it had no validity.

The major issue is to spot a lawsuit coming at you. Here the plaintiff, although not suffering any major injuries, went out of her way to talk to all the managers she could find. Although her claims and allegations may seem to be preposterous, she repeatedly made them to anyone and everyone she could. That is a warning sign, you have an upset guest.

No matter how wild the allegations, the other warning signs mean you need to take the complaint as valid and deal with it. More importantly, deal with the complaining guests. Although her allegations are beyond belief and would not be done by your staff, you have a guest who is obviously willing to do anything to get something out of you.

Finally, you must caution your staff about making any statement that could be interpreted by a guest as a risk, threat, or an attempt to create injuries. Although probably, if at all plausible, a joke, it was interpreted or could be interpreted by the plaintiff as the reason for her injuries.

Plaintiff: Donna Rich and Mark Rich

Defendant: Tee Bar Corp. and Rocking Horse Ranch Corp

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk, Release,

Holding: Defendants Summary Judgment motion denied and sent for trial.

What do you think? Leave a comment.

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

Email: blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Tee Bar Corp., Rocking Horse Ranch Corp, ski area, tubing hill, tubing, negligence, fling, Release, Assumption of the Risk, Express Assumption of the Risk,

WordPress Tags: plaintiff,judgment,area,Rich,Corp,Dist,LEXIS,employees,testimony,husband,defendant,resort,York,daughter,tube,attendants,tubers,hill,deceleration,injury,Frisher,woods,McDermott,incident,coworker,tuber,barrier,ramp,employee,room,hospital,managers,Some,rubber,straw,guests,complaint,district,jurisdiction,information,opinion,jury,Summary,assumption,Under,person,participation,participant,dangers,dismissal,fact,Here,versions,decision,Prior,trier,argument,Bags,limitation,negligence,waiver,reference,Thus,defendants,occurrence,Moreover,claimant,injuries,Remember,requirements,Breach,Damages,connection,basis,arguments,Signs,path,Places,Just,Although,signature,events,lawsuit,experts,allegations,guest,belief,statement,threat,Donna,Mark,Horse,Ranch,Claims,Defenses,Risk,Release,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,whether,triable

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682

Posted: February 11, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, New York, Release (pre-injury contract not to sue), Ski Area, Snow Tubing | Tags: assumption of the risk, Express Assumption of the Risk, fling, Negligence, Release, Rocking Horse Ranch, Rocking Horse Ranch Corp, ski area, Ski Resort, Tee Bar Corp., Tubing, tubing hill | Leave a comment

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682

Donna Rich and Mark Rich, Individually and as Husband and Wife, Plaintiffs, vs. Tee Bar Corp. and Rocking Horse Ranch Corp., Defendants.

1:10-CV-1371 (MAD/CFH)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

2013 U.S. Dist. LEXIS 10682

January 28, 2013, Decided

January 28, 2013, Filed

CORE TERMS: tube, snow, summary judgment, guest, flung, attendant, top, evening, tuber, tubing, rope, pushed, deceleration, temperature, daughter, ski, issue of material fact, citation omitted, introducing, deposition, genuine, sport, conversation, double, ramp, tow, ran, credibility, causally, test runs

COUNSEL: [*1] For Plaintiffs: John W. Liguori, Esq., OF COUNSEL, Rehfuss, Liguori & Associates, P.C., Latham, NY.

For Defendants: Matthew J. Kelly, Esq., OF COUNSEL, Roemer Wallens Gold & Mineaux LLP, Albany, NY.

JUDGES: Mae A. D’Agostino, U.S. District Judge.

OPINION BY: Mae A. D’Agostino

OPINION

Mae A. D’Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiffs commenced the within action against Tee Bar Corp. and Rocking Horse Ranch Corp. (“defendants” or “Ranch”) seeking monetary damages for pain and suffering and loss of consortium as a result of an accident that occurred on February 6, 2009. Plaintiffs allege that defendants’ negligence resulted in injury to plaintiff, Donna Rich. Presently before the Court is defendants’ motion summary judgment and dismissal of plaintiffs’ complaint pursuant to Fed. R. Civ. P. 56. In the alternative, defendants seek an order precluding plaintiffs from presenting medical evidence at trial with respect to certain injuries that defendants claim were not causally related to the accident. (Dkt. No. 28). Plaintiffs opposed the motion and cross-moved for an order pursuant to Fed. R. Evid. 403 precluding certain evidence offered by defendants on the motion. (Dkt. No. 31). [*2] This court has jurisdiction pursuant to 28 U.S.C. § 1332.

FACTS¹

1 Defendants filed a Statement of Material Facts and plaintiffs properly responded. Plaintiffs also set forth additional facts. Defendants have not responded to these additional assertions in the reply submission. To the extent that the “facts” asserted by plaintiffs in the Statement of Material Facts are supported by the record, the Court will consider them in the context of the within motion. The background set forth in this section is taken from: (1) defendants’ Statements of Material Facts and plaintiff’s responses therein; (2) the exhibits and evidence submitted by defendants in support of the motion for summary judgment; and (3) the exhibits and evidence submitted by plaintiffs in opposition to the motion for summary judgment. The facts recited are for the relevant time period as referenced in the complaint.

The facts in this case, unless otherwise noted, are undisputed. Rocking Horse Ranch is a family-owned resort in Highland, New York that provides a variety of activities for guests including horseback riding, water activities, entertainment, skiing and snow tubing. Plaintiff, Donna Rich (“plaintiff” or “D. Rich”), [*3] went to the Rocking Horse Ranch with her husband, Mark Rich (“plaintiff” or “M. Rich”) and their two children. Plaintiffs checked in on February 6, 2010 and stayed until Sunday, February 8, 2010.

The ski area and tube run at the Ranch are inspected by the New York State Department of Labor. The Ranch receives a permit from the State to operate the lift at the snow tube hill. The snow tube hill has been in continuous operation at the Ranch since 1994 or 1995. On a given day, approximately 1000 tubes will go down the snow tube hill. The snow tubing hill at the Ranch consists of a single tow rope and either one or two lanes for snow tubers. Guests hook their tubes to the tow rope and ride up the hill. Guests then ride their tubes to the bottom. Ranch employees assist with each step, including giving a “gentle” nudge in order to get the guests started down the hill. Guests may ride in single tubes alone or in double tubes with another person. The snow tube hill ends in a flat area covered with hay and then continues into a deceleration ramp – an uphill section designed to further slow riders. “Willy bags” and hay bales are set up to “create a horseshoe for protection” around the deceleration [*4] ramp.²

2 The parties disagree on whether Willy bags were in place on the evening of plaintiff’s accident.

Generally, because the speed of the tubes is affected by changeable conditions, the snow tube run is tested by the employees before it opens. If tubers are traveling too far up the deceleration ramp, staff members will add additional deceleration mats – rubber mats used to slow the riders – and they will add additional hay at the base of the deceleration ramp, stretching it out so that tubers hit the hay sooner and slow down. Ranch employees test both the single and double tubes before opening the snow tube hill to guests.³ Typically, the double tubes will go farther than the single tubes. Generally, because the conditions are changeable, Ranch employees constantly monitor the distance guests are traveling, and they make adjustments to the hay and mats as needed, even after the hill has opened to guests.⁴

3 The parties dispute whether these procedures were in place on the evening of plaintiff’s accident.

4 The parties dispute whether these procedures were in place on the evening of plaintiff’s accident.

On the evening of February 6, 2010, plaintiff and her family went snow tubing at the [*5] Ranch. The highest temperature was 26 degrees Fahrenheit with a low temperature of zero degrees Fahrenheit.⁵ Plaintiff knew that snow-tubing involved risks and that there were no brakes on the tube and that she was unable to steer the tube. Plaintiff took approximately three or four trips down the hill with her daughter on a double tube. Each time they would ride to the top of the hill using the tow rope. An attendant at the top of the tow rope would unhook their tube after they climbed off of it, and they would wait in line for their turn to go down the hill. Each time plaintiff rode down the hill with her daughter, she came to a complete stop on the hay at the bottom of the hill. After taking three or four trips down the hill with her daughter, plaintiff switched to a single tube. Plaintiff rode to the top of the hill in her single tube and found the same two attendants working at the top of the hill. Plaintiff believed the attendants’ names were “Tim” and “Sal”.⁶ Plaintiff claims that the two attendants were talking to each other about trying to get tubers to strike the back of the wall at the end of the tube run. Plaintiff claims that McDermott pushed a girl in a tube, and she [*6] went down the hill “at a good pace” and then stopped on the hay.

5 See Affidavit of Paul F. Cooney, annexed to defendants’ motion for summary judgment as Exhibit P. The affidavit contains certified meteorological records from the National Climatic Data Center. The parties do not object to the authenticity of those records. The records will be considered by the Court on the within motion.

6 The record indicates that the names were Tim McDermott (“McDermott”) and Sal Frisher (“Frisher”).

McDermott helped plaintiff’s daughter into a tube and pushed her down the hill. Plaintiff then got into her tube. Plaintiff claims that, without warning, Frisher took the rope attached to her tube, ran her back towards the woods, then turned and ran her to the top of the hill and “flung” her down the hill. McDermott does not remember the incident at all and denies ever seeing a coworker “fling” a tuber down the hill. Frisher does not remember the incident and denies ever seeing anyone “fling” a tuber down the hill. Plaintiff struck the barrier at the top of the deceleration ramp. Amanda Odendahl (“Odendahl”), a Ranch employee, was working at the snow tube hill on the evening of plaintiff’s accident and testified [*7] that she, “remember[ed] a woman coming down and hitting the back of the wall, rolling out of her tube”. At the time of plaintiff’s accident, the temperature was between 15 and 20 degrees Fahrenheit.

Ranch employees assisted plaintiff from the hill. Jack Barnello (“Barnello”), a first aid provider and the manager on duty, examined plaintiff. Barnello walked plaintiff to the ski shop area so that she could sit down. They stayed in the ski shop area for approximately ten minutes, but plaintiff wanted to go back to her room to lie down. Plaintiff returned to her room and Barnello brought another employee, a nurse, to check on plaintiff in her room. Plaintiff complained of a headache. Barnello and the nurse suggested that plaintiff get checked at the hospital, but plaintiff refused to go. Barnello completed an accident report regarding the incident.⁷ Plaintiff claims that she told Barnello that she was “flung” down the hill. Barnello denies the conversation. The accident report indicates that the accident occurred at 8:00 p.m. at the “bottom of tube run”. In the section of the report entitled “Description of Incident, Statements, Witness(es), Address of Witness(es), Barnello wrote:

Guest [*8] struck her head (left side) on the back wall of the tube run. She was in a single tube, she was thrown into the back wall when tube hit the back wall.

7 The report is annexed to defendants’ motion as Exhibit “R”. Barnello identified the report during his deposition and plaintiffs do not object to the admissibility of the report. Accordingly, the Court will consider the report in the context of the within motion.

Plaintiff did not receive any medical treatment that evening. The next day, plaintiff skied for an hour or two with her family. While at the ski hill, plaintiff spoke with Anthony Riggio (“Riggio), the head of grounds at the Ranch, and claims that she told Riggio about the accident. Riggio denied that plaintiff told him that she had been “flung” down the hill. In the days after the accident, plaintiff claims that she spoke with Stanley Ackerman, the Ranch’s general manager. However, the parties do not agree on the substance of that conversation. M. Rich testified that plaintiff told him that she was “flung” [*9] down the hill. M. Rich did not see the accident occur and did not discuss the accident with any Ranch employees. Plaintiff took Advil and remained at the Ranch for the weekend.

DISCUSSION

I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

A. Standard on Summary Judgment

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ( c ). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the Court, viewing the evidence in the light most favorable to the nonmovant, determines that the movant has satisfied this burden, the burden then shifts to the nonmovant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See id. If the nonmovant fails to [*10] carry this burden, summary judgment is appropriate. See id. “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Niagara Mohawk Power Corp. v. Hudson River–Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012).

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party’s entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant’s favor. Chertkova v. Conn. Gen’l Life Ins. Co., 92 F .3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56 ( c ).

In applying this standard, the court should not weigh evidence [*11] or assess the credibility of witnesses. Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citation omitted). Credibility determinations and choices between conflicting versions of the events are generally matters for a jury and not for the court on summary judgment. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citing inter alia Anderson, 477 U.S. at 255). While not argued by defendants, there is a very narrow exception to the rule as stated by the Second Circuit in Jeffreys v. City of New York, 426 F.3d 549, 553-55 (2d Cir. 2005). In Jeffreys, the Second Circuit held that summary judgment may be awarded in the rare circumstance where there is nothing in the record to support plaintiff’s allegations, other than his own contradictory and incomplete testimony, and even after drawing all inferences in the light most favorable to the plaintiff, the court determines that “no reasonable person” could believe the plaintiff’s testimony. Id. at 554-55. In order for the Jeffreys exception to apply: (1) the plaintiff must rely “almost exclusively on her own testimony”; (2) the plaintiff’s testimony must be contradictory or incomplete; and (3) the plaintiff’s version [*12] of events must be contradicted by defense testimony. Jeffreys, 426 F.3d at 554.

B. Assumption of the Risk

Where jurisdiction is based upon diversity, the court must apply the substantive law of the forum state. Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994); see also Ascher, 522 F. Supp. 2d at 452 (E.D.N.Y. 2007) (citations omitted). A person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”. Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). A participant “may be held to have consented to those injury-causing events which are known, apparent and reasonably foreseeable”. Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d 957, 958, 862 N.Y.S.2d 626 (3d Dep’t 2008) (citations omitted). However, a participant does not assume risks that are the result of reckless or intentional conduct, risks “concealed or unreasonably increased” or risks that result in a “dangerous condition over and above the usual dangers inherent in the activity.” Morgan, 90 N.Y.2d at 485; Huneau v. Maple Ski Ridge, Inc., 17 A.D.3d 848, 849, 794 N.Y.S.2d 460 (3d Dep’t 2005) (citations [*13] omitted). “Generally, whether the plaintiff assumed a risk by participating in a sport is a question for the jury; dismissal of the complaint is appropriate only when the proof before the court reveals no triable issue of fact.” Samuels v. High Braes Refuge, Inc., 8 A.D.3d 1110, 1111, 778 N.Y.S.2d 640 (4th Dep’t 2004) (citations omitted).

Here, defendants claim that they satisfied their duty to make conditions safe. Specifically, defendants assert that plaintiff was aware of the risks associated with snow tubing and that she rode down the hill three or four times before her accident occurred. Defendants also allege that summary judgment is warranted because there is no evidence corroborating plaintiff’s version of how the incident occurred. Plaintiffs claim that defendants’ employees engaged in reckless conduct.

Plaintiff testified that she rode down the hill three or four times on a double tube with her daughter. However, her accident occurred during her first run down in a single tube. Plaintiff testified that as she waited in line, “I heard one of the boys joking with the other about having people – – trying to get people to hit the wall”. (D. Rich EBT at p. 88-89). Plaintiff explained that the “boys” [*14] were the two attendants at the top of the hill and believed their names were “Tim” and “Sal”. When plaintiff was ready to move down the hill, she claims that Sal:

. . . took my rope, and he ran me back to the wooded line. And then he turned, and ran me to the tope of the hill and kind of flung my tube down.

Id. at 94.

Plaintiff testified that Sal ran backwards, “more than five feet”. Id. at 96. Plaintiff never saw Sal do this at any other time during the evening. Plaintiff also testified that the day after the incident, she told Jack Barnello, Anthony Riggio and Stanley Ackerman exactly how the accident occurred. Id. at 103-106. Plaintiff claims that Barnello told her that, “he knew something wasn’t right because of the groups behavior after the tube”. Id. at 112. Plaintiff also claims that Barnello told her that he, “addressed the boys, and that they had admitted to fooling around”. Id. at 114. Plaintiff cannot identify any witnesses to her accident. Id. at 115.

The defense witnesses provide different accounts of the events that transpired during the weekend. In some instances, the testimony of the defense witnesses contradict each other. Frisher was deposed and testified that he never [*15] saw plaintiff prior to the date of his deposition and that he had no recollection of working on Friday, February 6, 2009. In fact, Mr. Frisher testified that “I’m usually off on a Friday and Saturday”. In support of the within motion, McDermott provided an affidavit and states, “I do not have any specific memory of this incident”. Riggio testified that “Sal and Tim were mentioned to me as the attendants at the time” but admitted that he knew that from reviewing plaintiff’s deposition testimony. Moreover, Riggio, Ackerman and Barnello did not speak with Frisher or McDermott about the incident. Riggio stated he eventually spoke with Frisher but only after the lawsuit was commenced.

Riggio admitted that he had a brief conversation with plaintiffs in the presence of Stan Ackerman. However, Ackerman testified that he did not recall seeing plaintiff while she was at the facility. (Ackerman EBT at p. 13). According to Riggio, plaintiff never described how the accident occurred and the conversation involved how she was feeling and getting her daughter help on the rope tow. (Riggio EBT at p. 26). Riggio, Barnello and Ackerman testified that none of the Ranch employees were disciplined as a result [*16] of the incident. Ackerman stated that he did not recall telling plaintiff, in any subsequent telephone conversations, that the attendants on the snow tubing hill had been disciplined. (Ackerman EBT at p.34). Barnello testified that he completed an accident report but did not recall plaintiff ever telling him that she was “forcibly launched” down the hill. (Barnello EBT at p. 24).

Defendants also contend that plaintiffs did not read warning signs at the facility. However, plaintiff testified that she had no recollection of any kind of signs that were present at the facility. See D. Rich EBT at p. 72. During plaintiff’s deposition, she was shown photographs of signs and asked if she recalled seeing the signs at the Ranch. Plaintiff testified, “No”. The photographs are not part of the record herein.⁸ Moreover, there is no evidence with respect to what was posted on the signs, where the signs were located and whether the signs were present at the Ranch on the day of plaintiff’s accident.

8 The Court notes that there are photographs of signs annexed to Jim Engel’s, plaintiffs’ expert, affidavit. Mr. Engel reviewed the signs but does not state whether the signs were present on the day of plaintiff’s [*17] accident or where they were located at the Ranch. Therefore, the photographs are not in competent, admissible evidence and will not be considered by this Court on the within motion.

Based upon the record, the parties and witnesses present varying accounts of the accident and thus, genuine issues of fact exist requiring a trial in this matter. The Court finds that this case does not fall within the narrow Jeffreys exception. Plaintiff’s testimony is not contrary or incomplete. Moreover, plaintiff’s testimony is not contradicted by reliable defense witnesses. Viewing the evidence in a light most favorable to plaintiffs, there are clear factual issues to be resolved by the jury including whether the attendants at the top of the hill unreasonably increased the risk of injury to plaintiff. See Huneau, 17 A.D.3d at 849.

The Court has reviewed the cases cited by defendants in support of the within motion and finds them factually distinguishable from the matter herein. In those cases, the plaintiffs described accidents with “foreseeable consequences” of snow tubing and did not prove that the defendants unreasonably enhanced the dangers. See Youmans, 53 A.D.3d at 959; Berdecia v. County of Orange, 15 Misc.3d 1102[A], 836 N.Y.S.2d 496, 2006 NY Slip Op 52582[U] [N.Y. Sup. 2006] [*18] (the plaintiff was “pushed” successfully on each of her three prior runs and voluntarily presented for a fourth run); Tremblay v. W. Experience, 296 A.D.2d 780, 745 N.Y.S.2d 311 (3d Dep’t 2002) (the risk of impacting the snow barrier was reasonably foreseeable).

C. Waiver

Defendants argue that summary judgment is appropriate because plaintiff signed an assumption of risk notification warning her of the risk of physical injury when using defendants’ facility. Plaintiff admits that she executed the waiver but contends that the waiver simply warned of weather-related conditions and changes in terrain and as such, plaintiff could not have assumed the risk of being launched down the run.⁹

9 The form is attached to defendants’ motion as Exhibit “S”. The document is not in competent, admissible form. However, plaintiffs do not dispute the authenticity of the document and thus, it will be considered by the Court on the motion.

An exculpatory agreement will be enforced when the language expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant’s negligence. Walker v. Young Life Saranac Vill., 2012 U.S. Dist. LEXIS 166057, 2012 WL 5880682, at *6 (N.D.N.Y. 2012) (citations omitted). “[T]he [*19] law frowns upon contracts intended to exculpate a party from the consequences of its own negligence”. Id. (citing Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979)). “It must be plain and precise that the limitation of liability extends to negligence or the fault of the party attempting to shed its ordinary responsibility.” 2012 U.S. Dist. LEXIS 166057, [WL] at *8. Further, an agreement that attempts to exempt a party from grossly negligent acts is wholly void. Gross, 49 N.Y.2d at 106.

On February 6, 2009, plaintiff executed a form entitled “Participants Responsibilities of Activities and Assumptions of Risk”. The form provides, inter alia:

Guest acknowledges that participation in riding, water skiing and other sports and activities listed but not limited to those in brochure, and/or available at Rocking Horse Ranch Resort are used at participants own risk and guest is of legal age and will advise others in his/her parties in inherent risks in partaking of such activities.

* * *

3. I acknowledge that ski area and riding trail conditions vary constantly because of weather and natural causes. I also understand that ice, variations in terrain, moguls, rocks, forest growth, debris and other obstacles and hazards, including other [*20] participants exist throughout the property. Therefore I acknowledge that participation in any sport or activity can be a hazardous activity and that I could suffer personal injury as a participant.

I hereby expressly acknowledge my understanding and acceptance of the foregoing and agree to assume the risk of any personal injuries which I may incur during my use of the Rocking Horse Facilities.

The waiver makes no reference to “negligence” and does not mention the specific risks inherent in snow tubing. Thus, the waiver is insufficient to protect defendants from liability for the subject occurrence. Moreover, having never been made aware of the risks involved in the activity, claimant cannot be considered to have assumed them. Long v. State, 158 A.D.2d 778, 780-781, 551 N.Y.S.2d 369 (3d Dep’t 1990). Thus, summary judgment based upon the waiver of liability is not appropriate.

D. Proximate Cause

Defendants also argues, in the alternative, that even assuming there is an issue of fact with respect to the assumption of the risk doctrine, defendants have demonstrated that being “flung” down the hill, in the manner plaintiff described, was not the proximate cause of the accident.

On February 11, 2012, at approximately [*21] 5:30 p.m., defendants conducted an experiment to determine the effects of being pushed and “flung” on the distance traveled at the snow tube hill. The highest temperature was 39 degrees Fahrenheit with a low temperature of 25 degrees Fahrenheit. At the time of the test runs, the temperature was approximately 28 degrees Fahrenheit. A Ranch employee who matched plaintiff’s physical characteristics, weighing approximately 200 pounds and standing approximately 5 feet 2 inches tall, took nine runs down the snow tube hill. On the first three runs, the employee was not pushed at all. On the next three runs, the employee was given a hard push on his back. On the final three runs, the employee was pulled backwards by the strap and then “flung” down the hill. In support of the motion, defendants offer the affidavit of Paul Engel, the owner of Sunburst Ski Area. Engel avers that he has engaged in “extensive analysis of the factors that affect speed and distance of snow-tubers”. However, Engel does not assert, nor is there any evidence, that he was present during the experiments that were conducted in February 2012. Rather, he states that he reviewed the video footage taken that evening and that [*22] he “reached several conclusions based on that footage and the associated case information”.

Plaintiffs’ expert, Paul F. Cooney, performed a series of calculations that allegedly led to the conclusion that being pushed or flung would cause a snow tuber to travel farther down the hill. According to plaintiffs’ expert’s calculations, it was possible for a snow tuber to hit the wall if he or she was flung down the hill.

The Court is wary of awarding summary judgment where there are conflicting expert reports. In re Omnicom Group, Inc. Sec. Litig., 597 F.3d 501, 512 (2d Cir. 2010); Rand v. Volvo Fin. N. Am., 2007 U.S. Dist. LEXIS 33674, 2007 WL 1351751, at *3 (E.D.N.Y. 2007) (“[i]t is not for the court to decide which expert opinion is more persuasive.”). “The conflicting opinions and statements of both parties’ experts on material factual issues . . . can only be determined by a trial on the merits”. Regent Ins. Co. v. Storm King Contracting, Inc., 2008 U.S. Dist. LEXIS 16513, 2008 WL 563465, at *10 (S.D.N.Y. 2008). It would be improper for the Court to engage in an evaluation of Engel’s and Cooney’s opinions. The jury must make a determination regarding the credibility of all expert witnesses. See Scanner Techs. Corp. v. Icos Vision Sys. Corp., 253 F.Supp.2d 624, 634 (S.D.N.Y. 2003) [*23] (“The credibility of competing expert witnesses is a matter for the jury, and not a matter to be decided on summary judgment.”).

II. DEFENDANTS’ MOTION TO PRECLUDE

In the alternative, defendants argue that plaintiffs should be precluded from introducing evidence that plaintiff’s herniations and surgeries were causally related to the accident at defendants’ facility.¹⁰ Defendants rely upon the lack of contemporaneous treatment records and the opinions of John T. Rigney, M.D., a radiologist retained by defendants to review plaintiff’s MRI films. Plaintiffs’ claim that the reports completed by plaintiff’s treating providers and surgeon indicate that her injuries are related to the accident.

10 On the motion, the parties present various “facts” with respect to plaintiff’s medical treatment. The Court will not recite these facts as they are irrelevant for the purposes of this motion.

As discussed in Part II, conflicting expert opinions preclude summary judgment. Moreover, evaluations of doctor’s testimony should be addressed by the factfinder. Augustine v. Hee, 161 F. App’x 77, 79 (2d Cir. 2005). The conflict in the medical opinions of the parties’ experts, is sufficient to raise an issue of [*24] material fact as to whether plaintiffs’s herniations and surgeries were causally related to the accident; thus, the claims may not be dismissed on summary judgment. See Shamanskaya v. Ma, 2009 U.S. Dist. LEXIS 63814, 2009 WL 2230709, at *7 (E.D.N.Y. 2009). Defendants’ motion to preclude plaintiffs from introducing evidence related to this issue at trial is denied.

III. PLAINTIFFS’ CROSS MOTION

Plaintiffs cross move for an order precluding plaintiff from introducing the video of test runs from February 2011 on this motion. Based upon this Court’s decision above, plaintiffs’ cross-motion is denied as moot. Plaintiffs’ motion specifically seeks to preclude this evidence from consideration on this motion. The parties are advised that the Court takes no position on the admissibility of defendants’ video of test runs at trial.

CONCLUSION

It is hereby

ORDERED, that defendants motion for summary judgment and dismissal of plaintiffs’ complaint in its entirety (Dkt. No. 28) is DENIED; it is further

ORDERED that defendants motion to preclude plaintiff from introducing evidence at trial that plaintiff’s injuries were causally related to the accident (Dkt. No. 28) is DENIED; it is further

ORDERED, that plaintiffs’ motion to preclude [*25] defendants from introducing the video of the February 2011 test runs as evidence in support of defendants’ summary judgment motion (Dkt. No. 31) is DENIED as moot.

ORDERED that a Settlement Conference is scheduled in this matter for April 2, 2013 at 10:30 a.m. in Albany. The parties are directed to appear at that time and make submissions in advance of the conference as directed in this Court’s Order Setting Settlement Conference which will be forthcoming.

IT IS SO ORDERED.

Dated: January 28, 2013

Albany, New York

/s/ Mae A. D’Agostino

Mae A. D’Agostino

U.S. District Judge

WordPress Tags: Rich,Corp,Dist,LEXIS,Donna,Mark,Husband,Wife,Plaintiffs,Horse,Ranch,Defendants,STATES,DISTRICT,COURT,NORTHERN,YORK,January,TERMS,tube,judgment,guest,tuber,deceleration,temperature,daughter,fact,citation,conversation,ramp,COUNSEL,John,Liguori,Rehfuss,Associates,Latham,Matthew,Roemer,Wallens,Gold,Mineaux,Albany,JUDGES,Agostino,Judge,OPINION,MEMORANDUM,DECISION,ORDER,INTRODUCTION,action,consortium,accident,February,negligence,injury,plaintiff,dismissal,complaint,injuries,Evid,jurisdiction,FACTS,Statement,Material,assertions,submission,extent,context,Statements,responses,opposition,resort,Highland,guests,area,State,Department,Labor,hill,tubes,lanes,tubers,employees,person,riders,bales,horseshoe,protection,rubber,adjustments,procedures,degrees,Fahrenheit,zero,attendants,McDermott,girl,Affidavit,Paul,Cooney,Exhibit,National,Climatic,Data,Center,Frisher,woods,incident,coworker,barrier,Amanda,Odendahl,employee,woman,Jack,Barnello,provider,manager,room,headache,hospital,Description,treatment,hour,Anthony,Riggio,Stanley,Ackerman,substance,Advil,DISCUSSION,MOTION,SUMMARY,Standard,Substantive,outcome,Anderson,Lobby,Celotex,Catrett,existence,jury,verdict,Niagara,Mohawk,Power,Hudson,River,Black,Federal,Rule,Civil,Procedure,affidavits,transcripts,documentation,absence,entitlement,Viola,Philips,basis,inferences,ambiguities,Chertkova,Conn,Life,Hayes,Corr,determinations,versions,events,Brine,exception,Second,Circuit,Jeffreys,circumstance,allegations,testimony,version,Assumption,Risk,Where,forum,Travelers,Third,Assocs,Ascher,Supp,citations,participation,Morgan,participant,Youmans,Maple,Ridge,dangers,Huneau,Samuels,High,Braes,Refuge,Here,boys,feet,behavior,instances,recollection,memory,Moreover,lawsuit,presence,Stan,conversations,Engel,accidents,consequences,Berdecia,Orange,Misc,Slip,fourth,Tremblay,Experience,Waiver,notification,terrain,agreement,intention,defendant,Walker,Young,Saranac,Vill,Gross,Sweet,limitation,Further,Participants,Responsibilities,Activities,Assumptions,brochure,variations,moguls,growth,debris,obstacles,acceptance,Facilities,reference,Thus,occurrence,claimant,Long,Proximate,Cause,doctrine,manner,characteristics,owner,Sunburst,analysis,factors,Rather,footage,conclusions,information,series,calculations,conclusion,Omnicom,Group,Litig,Rand,Volvo,opinions,experts,Regent,Storm,evaluation,determination,Scanner,Techs,Icos,Vision,PRECLUDE,surgeries,Rigney,providers,surgeon,purposes,Part,evaluations,Augustine,Shamanskaya,CROSS,Settlement,Conference,April,submissions,pursuant,whether,three,four,nonmovant,movant,triable,alia,upon,hereby,herniations

Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82

Posted: December 3, 2012 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Idaho, Legal Case | Tags: Canyon County, Canyon County Idaho, Climbing Wall, Coercion, Employee, Idaho, Indemnity, Negligence, Northwest Nazarene University, Release, Team Building | Leave a comment

Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82

Paul Morrison, Plaintiff-Appellant, v. Northwest Nazarene University, Defendant-Respondent.

Docket No. 37850-2010, 2012 Opinion No. 52

SUPREME COURT OF IDAHO

273 P.3d 1253; 2012 Ida. LEXIS 82

March 22, 2012, Filed

PRIOR HISTORY: [**1]

Appeal from the District Court of the Third Judicial District of the State of Idaho, in and for Canyon County. The Hon. Juneal C. Kerrick, District Judge.

DISPOSITION: The judgment of the district court is affirmed.

COUNSEL: John C. Doubek; Doubek & Pyfer, LLP; Helena, Montana; argued for appellant.

John A. Bailey; Racine Olson Nye Budge & Bailey, Chtd; Pocatello; argued for respondent.

JUDGES: EISMANN, Justice. Chief Justice BURDICK, Justices W. JONES, and HORTON CONCUR. J. JONES, J., concurring in part and dissenting in part.

OPINION BY: EISMANN

OPINION

[*1254] EISMANN, Justice.

This is an appeal challenging the district court’s ruling on summary judgment that the plaintiff’s action for personal injuries suffered when he fell from a climbing wall was barred by the hold harmless agreement he signed prior to engaging in that activity. We affirm the judgment of the district court.

Factual Background.

As a team building exercise, Paul Morrison’s employer wanted him and his coworkers to participate in a program at Northwest Nazarene University that included a climbing wall activity. Several days prior to doing so, Morrison’s employer required him to sign an agreement prepared by the University holding it harmless from any loss or damage he might incur [**2] due to the University’s negligence or that of its employees.

Morrison was severely injured when he fell while on the climbing wall. He filed this action alleging that his injuries were caused by the negligence of the University employees who were supervising the climbing wall activity. One of Morrison’s coworkers was assigned to control the safety rope used to keep the wall climber from falling, and Morrison alleges that his fall was caused by the negligent failure of a University employee to train and supervise that coworker.

The University moved for summary judgment on the ground that Morrison’s cause of action was barred by the hold harmless agreement. The district court agreed and dismissed this action. Morrison then timely appealed.

II.

Did the District Court Err in Failing to Invalidate the Hold Harmless Agreement Due to the Inequality in Bargaining Power

[HN1] “Freedom of contract is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.” Rawlings v Layne & Bowler Pump Co., 93 Idaho 496, 499, 465 P.2d 107, 110 (1970). Agreements exempting a party from liability for negligence will be upheld unless the party owes to the other party [**3] a public duty created by statute or the other party is at an obvious disadvantage in bargaining power. Lee v. Sun Valley Co., 107 Idaho 976, 978, 695 P.2d 361, 363 (1984).

In this case, there is no allegation of any public duty that the University owed to Morrison. However, he contends that there was an obvious disadvantage in bargaining power because his employer required that he sign the hold harmless agreement. [HN2] The existence of unequal bargaining power is not, by itself, sufficient to relieve a party from the provisions of a hold harmless agreement. Rather, the party must be “compelled to submit to a provision relieving the other from liability for future negligence [because] . . . the party injured has little choice, as a practical matter, but to use the services offered by the party seeking exemption.” 57A Am. Jur. 2d Negligence § 63 (2004). It is essentially the same test for determining whether unequal bargaining power between parties to a contract is sufficient to constitute procedural unconscionability. See Lovey v. Regence BlueShield of Idaho, 139 Idaho 37, 42, 72 P.3d 877, 882 (2003) (“Lack of voluntariness can be shown . . . by great imbalance on the [*1255] parties’ bargaining [**4] power with the stronger party’s terms being nonnegotiable and the weaker party being prevented by market factors, timing, or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.”)

In this case, Morrison stated in his affidavit: “My said employer told us before we went to the team building exercises that I needed to sign the release in order to participate. All employees were expected to participate and I signed it.” He also stated that he was not given the option of refusing to sign the release and it was required by his employer. Morrison was not injured by signing the release. He was injured by falling from the climbing wall. Absent from his affidavit is any statement that he told his employer that he did not want to climb the climbing wall and that his employer ordered him to do so anyway.¹

1 We need not decide whether an employer’s demand that an employee participate in a hazardous activity would be sufficient to void a hold harmless agreement between the employee and the third party that conducted such activity.

[HN3] “With respect to adult participants, the general rule is that releases from liability for injuries [**5] caused by negligent acts arising in the context of recreational activities are enforceable.” 57A Am. Jur. 2d Negligence § 65 (2004). The agreement that Morrison signed stated as a separate paragraph: “The undersigned has read and voluntarily signs this release and waiver of liability and indemnity agreement. The undersigned further agrees that no oral representations, statements or inducements apart from the foregoing agreement have been made.” Morrison has not demonstrated a genuine issue of material fact showing that there was an obvious disadvantage in bargaining power sufficient to relieve him of the provisions of the hold harmless agreement that he signed.

III.

Did the District Court Err in Ruling that the Hold Harmless Agreement Was Valid and that It Applied to the Cause of Action Alleged in the Complaint

Morrison contends that the hold harmless agreement is invalid because it is overly broad and is ineffective to bar his claim because it does not clearly identify the conduct that caused his injuries. [HN4] “Interpretation of unambiguous language in a contract is an issue of law.” McDevitt v. Sportsman’s Warehouse, Inc., 151 Idaho 280, 283, 255 P.3d 1166, 1169 (2011).

The agreement is [**6] entitled “Release / Hold Harmless / Indemnity / Assumption of Risk Agreement,” and it states as follows:

Release: The undersigned, in consideration of being permitted to participate in the Northwest Nazarene University Challenge Course Adventure Program, for educational purposes does irrevocably, personally and for his or her heirs, assigns and legal representatives, release and waive any and all past, present or future claims, demands, and causes of action which the undersigned now has or may in the future have against Northwest Nazarene University, its members, directors, administrators, representatives, officers, agents, employees, and assigns, and each of them (hereinafter jointly and severally referred to as “Releasees”), for any and all past, present or future loss of or damage to property, and/or bodily injury, including death, however caused, resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.

Hold Harmless/Indemnity: The undersigned agrees to defend, indemnify and hold harmless the Releasees and each of them from any loss, liability, damage or cost she/he might incur [**7] due to her/his participation in or use of the Northwest Nazarene University Challenge Course Adventure Program whether caused by the negligence of the Releasees or otherwise. The undersigned further covenants not to cause any action at law or in equity to be brought or permit such to be brought in his or her behalf, either directly or indirectly, on account of loss or damage to property and/or bodily injury, including death, against the Releasees, resulting [*1256] from, or arising out of, or in any way connected with any claims, demands, and causes of action which now or in the future may be asserted against the Releasees arising out of or by reason of said course described above, including any injury, loss or damage that might occur at any place in connection therewith.

Assumption of Risk: The undersigned further states and affirms that he/she is aware of the fact that the aforesaid course, even under the safest conditions possible, may be hazardous, that he/she assumes the risks of any and all loss or of damage to property and/or bodily injury, including death, however caused, resulting out of or in any way connected with the Northwest Nazarene University Challenge Course Adventure Program; [**8] that he/she is of legal age and is competent to sign this Waiver of Claims and Release of Liability; and that he/she has read and understands all of the provisions herein contained. Risks include but are not limited to the following: [a list of various types of actions that can cause injury and various types of injuries].

Morrison contends that the hold harmless agreement is invalid because it is overbroad. It exempts the University and “its members, directors, administrators, representatives, officers, agents, employees, and assigns, and each of them” from “any and all past, present or future claims, demands, and causes of action which the undersigned now has or may in the future have” for all “bodily injury, including death, however caused, resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.” It also specifically mentions negligence. The hold harmless agreement is not overbroad. It only applies to all causes of action “resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure [**9] Program.”² Due to the dangers inherent in climbing the climbing wall, the University can certainly require such a release from anyone choosing to engage in that activity.

2 There is no contention that the conduct of the University employee was reckless or that the employee intentionally injured Morrison.

The agreement is likewise not inapplicable because of its failure to mention the specific conduct that is alleged to have constituted negligence in this case. In Anderson & Nafziger v. G. T. Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979), this Court stated, “Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant which caused the harm at issue.” That language can be misinterpreted, because neither that case nor the cases it cited nor our subsequent cases have held that an exculpatory clause must list the specific, allegedly negligent conduct at issue.

The Anderson & Nafziger Court cited three cases as support for the statement. The first one was Valley National Bank v. Tang, 18 Ariz. App. 40, 499 P.2d 991 (Ariz. Ct. App. 1972). In that case, the court stated “that clauses which purport to exclude liability for negligence must speak clearly [**10] and directly to the conduct at issue,” id. at 994, which it explained as meaning that an exculpatory clause would not cover negligence unless the wording was broad enough to include future negligent conduct within its scope. It stated, “The principal reason for such a construction is to assure that there has been actual agreement between the parties that the defendant shall not be liable for the consequences of future conduct which would otherwise be negligent.” Id. The second case was Missouri Pac. R. Co. v. City of Topeka, 213 Kan. 658, 518 P.2d 372 (Kan. 1974). The court held that a contract requiring a railroad to “save the said City of Topeka harmless from all costs, damages and expenses for the payment of which the said city may become liable to any person or persons or corporation by reason of the granting of said right of way to said railway company,” id. at 375, was not broad enough to require the city to pay the railroad the cost of relocating its tracks due to an urban renewal project. The court stated, “As we view the ‘hold harmless’ clause, to which the railroad is deemed to have agreed, there is no suggestion it was intended to [*1257] provide protection against liability for expenses, loss [**11] or damage created or made necessary by actions of the city-franchisor.” Id. at 376. The third case was Walker Bank & Trust Co. v. First Sec. Corp, 9 Utah 2d 215, 341 P.2d 944 (Utah 1959), in which the beneficiary of a life insurance policy sued a bank for damages because the policy had lapsed due to the bank’s failure to charge the insured’s account with drafts for the monthly premiums. The insured had signed an authorization to pay the drafts from her account, but the bank misplaced it. The authorization included a provision stating, “I understand and agree that your compliance herewith shall constitute a gratuity and courtesy accorded me as your customer, and that you assume or incur no liability whatsoever in the premises, and I further agree to hold you harmless of and from any and all claims arising hereunder.” Id. at 947. The court held that the hold harmless agreement only barred claims resulting from the bank’s “compliance herewith,” not its failure to comply with the agreement. The court stated:

It will be noted that the language quoted above purports only to protect the bank from liability arising from its compliance with the authorization, indicating that if it did so it would “incur no [**12] liability whatsoever.” . . . But there is no provision that it would be protected in the event of entire failure to fulfill the arrangement.

Id. (emphasis theirs). None of the cases held that an exculpatory clause was ineffective because the specific conduct that gave rise to the cause of action was not listed.

In Anderson & Nafziger, the buyer contracted to purchase three pivots that the seller agreed to deliver and install in mid-May, and the buyer brought an action for damages when the seller failed to do so. The purchase contract included a provision limiting the seller’s liability which stated as following:

It is hereby understood and agreed that all work ordered hereunder is precarious and uncertain in its nature, and all pulling of pumps, reinstalling pumps, repair work, alterations, well work, sand pumping, corrections, or other work herein specified, etc., shall be strictly at the Purchaser’s risk. The Seller will not be liable for damage of any kind, particularly including loss or damage for diminuation or failure of crop, shortage of water, inability or failure to supply same, or for diminuation or cessation of water flow; nor shall the Seller be liable for any damages or delays [**13] of any kind on account of sticking of pump in the well in any position, either when being pulled out or being reinstated nor shall the Seller be liable for any damages on account of delay in making repairs or installing by virtue of some defect in the well, or by virtue of the well not being in condition to receive the machinery, or by virtue of unforeseen or changing conditions in the well or in or about the premises on which the well is located.

Anderson v. Nafziger, 100 Idaho at 178, 595 P.2d at 712. This Court held that the clause did not preclude liability for crop loss caused by the failure to deliver the pivots because “[a] reading of the total clause indicates that the clause is aimed at limiting the seller’s liability for crop loss which is caused by installation or repair work done by seller.” Id. The clause listed specific types of conduct and causes of damage to which it applied. It did not have a general provision excluding liability for any delay in delivering or installing the equipment.

A review of this Court’s other cases shows that the hold harmless agreement need not specify the exact conduct that was allegedly negligent or caused harm. In H. J. Wood Co. v. Jevons, 88 Idaho 377, 400 P.2d 287 (1965), [**14] a landowner had entered into a contract for the purchase and installation of an irrigation pump in her well. The sales contract included a hold harmless agreement stating as follows:

Seller shall not be liable for damage or for consequential damage, particularly including loss or damage for diminution or failure of crops, shortage of water, or inability or failure to supply same, whether due to improper installation or performance of the machinery or otherwise . . . it being understood and agreed by Buyer that this work is uncertain and precarious in its nature.

[*1258] Id. at 378, 400 P.2d at 289. The landowner sought damages, alleging that she suffered crop losses because “the pump never functioned properly,” because the seller “removed the pump to make repairs and failed to provide appellant with a substitute pump,” and because “in making repairs to said pump [the seller] carelessly and negligently lost the tail pipe of said pump in the well, causing an inadequate flow or supply of water during the irrigation season.” Id. at 380, 400 P.2d at 288. The trial court sustained the seller’s objection to any evidence of crop loss, and then dismissed the landowner’s claim. On appeal, this Court held [**15] that it was not error to exclude evidence of crop loss because “[t]he foregoing quoted portion of the contract is unambiguous and clearly exempts respondent from liability for crop damage.” Id. at 381, 400 P.2d at 289. There was nothing in the exculpatory clause specifying that the seller would not be liable for failing to provide the landowner with a substitute pump while hers was being repaired or for negligently losing the tail pipe in the well, both of which were conduct that she alleged caused her damage. In fact, the clause did not even include the word “negligence.”

In Rawlings v Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970), the landowner entered into a contract for the purchase and installation of irrigation pumping machinery. He later brought an action seeking damages on the ground that he suffered crop loss because of the allegedly negligent installation of the pumping equipment. Paragraph 10 of the contract between the parties included an exculpatory clause stating:

Seller or Holder shall not be liable for consequential damage particularly including loss or damage for diminution or failure of crops, shortage of water, or inability or failure to supply same, due [**16] to installation or performance of the property sold hereunder, or repair work, pump or well service, nor shall Seller be liable for collapsing, telescoping, separating or otherwise injuring the well or pump, for any cause whatsoever, including negligence, since the Buyer and Seller agree that the work is hazardous and precarious in its nature . . . .

Id. at 497, 465 P.2d at 108. The trial court dismissed the landowner’s claim based upon the above contract provision, and the landowner appealed. In upholding the dismissal, we stated, “It is our opinion that the language contained in paragraph 10 of the contract is clear and unambiguous and its effect is to preclude the seller’s liability for consequential damages such as are sought by the appellant.” Id. at 499, 465 P.2d at 110. We did not require that the exculpatory clause mention the specific conduct that was allegedly negligent. In fact, the specific conduct that allegedly constituted negligent installation was not even identified in the opinion.

In Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435 (1984), the plaintiff contracted with the defendant to install and maintain a fire alarm system in the plaintiff’s [**17] building. The system failed to detect a fire because the defendant had not checked the electrolyte levels in the system’s batteries for eight months even though they were to be inspected monthly. The parties’ contract included a provision stating that the defendant “shall be exempt from liability for loss or damage due directly or indirectly to occurrences, or consequences therefrom, which the service is designed to detect or avert,” and that the exculpatory clause applied if the loss or damage “results directly or indirectly to person or property from performance or nonperformance of obligations imposed by this contract or from negligence, active or otherwise, of the [defendant], its agents or employees.” Id. at 789, 683 P.2d at 437. The plaintiff sued for strict liability, breach of warranty, and negligence. This Court first held that the complaint did not allege a cause of action under those theories, but then stated that even if the plaintiff could allege a cause of action it was barred by the exculpatory clause. Id. at 791, 683 P.2d at 439. We stated, “This unambiguous clause was clearly intended to apply to exclude liability under any of the bases urged by Steiner.” Id. The clause [**18] did not specifically mention the failure to inspect or maintain the batteries.

In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), the plaintiff, prior to going on a trail ride, signed a rental agreement [*1259] that included an exculpatory clause stating:

Upon my acceptance of horse and equipment, I acknowledge that I assume full responsibility for my safety. I further understand that I ride at my own risk, and I agree to hold the above entity, its officers, employees, etc., harmless from every and all claim which may arise from injury, which might occur from use of said horse and/or equipment, in favor of myself, my heirs, representatives or dependents. I understand that the stable does not represent or warrant the quality or character of the horse furnished.

Id. at 977, 695 P.2d at 362. Prior to the plaintiff mounting his horse, the defendant’s employee adjusted the cinch on the saddle. During the ride, the saddle loosened, and the plaintiff was injured when it rotated and the horse reared as he was attempting to dismount. We upheld the dismissal of the plaintiff’s claim on the ground that it was barred by the exculpatory clause, stating, “The agreement clearly and simply states [**19] that Sun Valley should be held ‘harmless for every and all claim which may arise from injury, which might occur from use of said horse and/or equipment,’ which is both unambiguous and applicable to the facts alleged by plaintiff.” Id. at 978, 695 P.2d at 363. The exculpatory clause did not even mention negligence, nor did it specifically list the failure to properly adjust the cinch as being within its scope. Justice Bistline dissented for that very reason. Id. at 981, 695 P.2d at 366.

Finally, in Empire Lumber Co v Thermal-Dynamic Towers, Inc., 132 Idaho 295, 971 P.2d 1119 (1998), a warehouse lease contained a provision stating, “Except for reasonable wear and tear and damage by fire or unavoidable casualty, Lessee will at all times preserve said premises in as good repair as they now are or may hereafter be put to . . . .” Id. at 297, 971 P.2d at 1121. We held that the clause did not exempt the lessee from liability for fire damage caused by the lessee’s negligence, stating, “The lease language does not clearly indicate, as required by this Court’s decision in Anderson & Nafziger, that the parties intended to release TDT from liability for its negligent acts.” Id. at 300, 971 P.2d at 1124. [**20] The clause made no mention of negligence, nor could its language be construed to apply to negligence. [HN5] Hold harmless agreements are strictly construed against the person relying upon them. Anderson & Nafziger, 100 Idaho at 178, 595 P.2d at 712.

The decisions of this Court have not held that a hold harmless agreement must describe the specific conduct or omission that is alleged to be negligent in order for it to bar recovery. That is consistent with the general law. [HN6] “The parties to a release need not have contemplated the precise occurrence that caused the plaintiff’s injuries but rather may adopt language to cover a broad range of accidents by specifying injuries involving negligence on the part of the defendant.” 57A Am. Jur. 2d Negligence § 53 (2004). In this case, the agreement stated that Morrison held the University harmless “from any loss, liability, damage or cost she/he might incur due to her/his participation in or use of the Northwest Nazarene University Challenge Course Adventure Program whether caused by the negligence of the Releasees or otherwise.” That language clearly stated that the clause applied to negligence and to any loss or damage he might incur from his participation [**21] in the program. The district court did not err in dismissing his negligence claim because it was barred by the hold harmless agreement.

IV.

Is the Defendant Entitled to an Award of Attorney Fees

In its issues on appeal, the University states that it “requests attorney fees on appeal pursuant to Idaho Code § 12-120(3), Idaho Code § 12-121, and/or Idaho Rule of Civil Procedure 54(e)(1).” However, it did not again mention attorney fees until it states in the conclusion section of its brief, “Respondent further requests an award of attorney fees on appeal pursuant to Idaho Code § 12-120 (3), Idaho Code § 12-121, and/or I.R.C.P Rule 54(e)(1).” As we held in Weaver v. Searle Brothers, 129 Idaho 497, 503, 927 P.2d 887, 893 (1996), [HN7] where a party requests attorney fees on appeal but does not address the issue in the argument section of [*1260] the party’s brief, we will not address the issue because the party has failed to comply with Idaho Appellate Rule 35.

Conclusion.

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

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

CONCUR BY: J. JONES (In Part)

DISSENT BY: J. JONES (In Part)

DISSENT

J. JONES, J., concurring in [**22] part and dissenting in part.

I concur in Part II of the Court’s opinion but dissent with respect to Part III. In my view, the Release/Hold Harmless/Indemnity/Assumption of Risk Agreement (Agreement) does not contain language effective to release Northwest Nazarene University (NNU) from liability for its own negligent actions; the release language in the Agreement is overly broad; and it would be contrary to public policy to provide immunity under the particular facts of this case.

Although this Court disfavors contracts purporting to absolve parties from certain duties and liabilities, contracting parties are free to enter into such agreements if they comply with strict criteria. As this Court summarized in Jesse v. Lindsley, 149 Idaho 70, 75, 233 P.3d 1, 6 (2008):

Freedom of contract is a fundamental concept underlying the law of contracts. Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499, 465 P.2d 107, 110 (1970). A contracting party may absolve himself from certain duties and liabilities under the contract, subject to certain limitations. Anderson & Nafziger v. G.T. Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979). However, courts look with disfavor on such attempts [**23] to avoid liability and construe such provisions strictly against the person relying on them, especially when that person is the preparer of the document. Id. Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant which caused the harm at issue. Id.

Where a party seeks to obtain contractual absolution from the consequences of that party’s own negligence, the release language must be particularly clear. As stated in 57A American Jurisprudence, 2d Negligence § 52 (2004):

Because the law does not favor contract provisions that relieve a person from his or her own negligence, and such provisions are subject to close judicial scrutiny, a greater degree of clarity is required to make such provisions effective. The exculpatory provision must be expressed in clear, explicit, and unequivocal language showing that this was the intent of the parties. The wording of such an agreement must be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.

American Jurisprudence continues the discussion in section 53:

To be effective, the intentions of the parties [**24] with regard to an exculpatory provision in a contract should be delineated with the greatest of particularity, and the clause must effectively notify the releasor that he or she is releasing the other person from claims arising from that person’s own negligence.

An exculpatory clause will be given effect if the agreement clearly and unambiguously expresses the parties’ intention to exonerate by using the word “negligence” and specifically including injuries definitely described as to time, place, and the like. Thus, the better practice is to expressly state the word “negligence” somewhere in the exculpatory provision. However, a specific reference to the “negligence” of the maker of the clause or agreement 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, if protection against negligence is the only reasonable construction, or if the hazard experienced was clearly within the contemplation of the provision. However, words conveying a similar import must appear; the provision must specifically and explicitly [*1261] refer to the negligence of the party seeking a release [**25] from liability. A preinjury release will not cover negligence if it neither specifically enumerates negligence, nor contains any other language that could relate to negligence.

A general release will not bar claims outside the parties’ contemplation at the time it was executed. For example, a claim for negligence will not be barred by using broad and sweeping language, as by an agreement to release from “any and all responsibility or liability of any nature whatsoever for any loss of property or personal injury occurring on this trip.” Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.

The parties to a release need not have contemplated the precise occurrence that caused the plaintiff’s injuries but rather may adopt language to cover a broad range of accidents by specifying injuries involving negligence on the part of the defendant.

Id. § 53.

The Agreement addresses four subjects–release, hold harmless, indemnity, and assumption of risk. The first paragraph of the Agreement, entitled “Release,” is a general release of liability,³ whereby participants in NNU’s Challenge Course Adventure Program (Program) release and waive claims against [**26] NNU and its agents and employees for property damage or bodily injury arising out of the Program. The word “negligence” does not appear anywhere in the Release. The second paragraph of the Agreement is a hold harmless/indemnity provision,⁴ whereby the participant “agrees to defend, indemnify and hold harmless” NNU and its agents and employees from liability incurred due to participation in the Program “whether caused by the negligence of the Releasees or otherwise.” Thus, the participant is obligated to defend and hold harmless the releasees against claims arising out of his or her participation in the Program. This paragraph specifically includes indemnity for claims alleging negligence on the part of NNU and its agents and employees. The last paragraph deals with assumption of risk,⁵ stating that the participant is aware that the course may be hazardous and that participants assume the risk of property damage and bodily injury. However, as with the Release, this paragraph makes no mention of negligence on the part of NNU and its agents and employees.

3 According to Black’s Law Dictionary, a “release” is “[t]he relinquishment or concession of a right, title, or claim.” Black’s Law Dictionary [**27] 1403 (9th ed. 2009).

4 According to Black’s, a “hold-harmless clause” is synonymous with an “indemnity clause,” which is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.” Id. at 800, 837-38.

5 According to Black’s, “assumption of the risk” is “[t]he principle that one who takes on the risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage.” Id. at 143. Although implied assumption of the risk has been abolished as a defense in Idaho, this Court still recognizes that express assumption of risk may preclude a negligence claim. Salinas v. Vierstra, 107 Idaho 984, 989-90, 695 P.2d 369, 374-75 (1985).

It is significant that only the hold harmless/indemnity paragraph of the Agreement includes a provision relating to the negligence of NNU. The word “negligence” appears nowhere else in the Agreement, particularly not in the Release nor in the assumption of risk paragraph. It is important to keep in mind that a hold harmless/indemnity clause does not operate as a bar to a claim in the same way as a “release” or “assumption of risk” clause might. [**28] So, where the party seeking immunity faces the double whammy of our construction principles–construing release provisions strictly against the person relying on them and requiring such provisions to speak clearly and directly to the particular instrumentality that caused the harm–I simply cannot find that the release language here is sufficient to waive Morrison’s claim. NNU could have included a provision in the Release absolving it and its agents and employees from liability, but it did not. It could have done likewise in the assumption of risk paragraph, but it did not. Where such language is specifically included in one paragraph dealing with specific subject matter [*1262] and not in the other paragraphs, both of which deal with other specific subject matter, I think we ought to give weight to that fact, particularly when required to construe such agreements against the avoidance of liability.

Therefore, in my view, the release paragraph of the Agreement is insufficient to immunize against claims asserting injury for negligent acts by NNU and its agents and employees. In my estimation, NNU had a duty to operate the program in a non-negligent manner and Morrison has asserted sufficient [**29] facts to survive summary judgment as to whether NNU breached such duty. Morrison claims that he was not properly instructed on how to scale down the climbing wall and that the person holding the rope, which is apparently designed to keep a participant from falling, was not properly instructed and supervised in performing that task. According to Morrison:

I had very little knowledge of climbing before [the accident]. I trusted and relied that the people running the course would properly instruct me and the people who were holding the rope that allowed me to scale down the wall. I do not believe that they gave me nor Donna Robbins, who was holding my rope, adequate instruction before this event nor do I believe that they adequately supervised Donna in properly handling the rope while I descended the wall.

The person holding the rope, Donna Robbins, agreed that she had not been properly instructed nor supervised. According to her affidavit, “I did feel that I had not been given adequate training to act as the belayer and I felt that I was neglected by the employees at the Rope Course when I was needing help.” In her statement made immediately after the accident, which was incorporated into [**30] her affidavit, she expanded:

The female assistant on site asked me to balet [sic] if I wasn’t going to climb the wall. I wasn’t comfortable working the equipment but I knew I should be a part of the team and help [belay]. I remember feeling like I was thrown in there and did not receive any further instruction other than where to hold my hands. After she strapped me in I was good to go. Soon she realized I was having trouble knowing what to do and informed me that I needed to pull the rope tight and slide the extra rope through my other hand to make it tight. She then placed another girl to my right and instructed her to coil the rope. I was the only one baleting [sic] and had one girl to my right holding the extra rope. As soon as they pulled the [ladder] away and Paul started climbing, I began to have trouble with the rope. The assistant assured me I was strapped down to the pole behind me and that I needed to walk forward away from the pole until I felt it was tight enough to not leave any slack. As soon as Paul reached the middle of the wall, his legs began to get tired and he would rest a little. But every time he would stop to rest, the rope pulled me into the air and the others [**31] around were laughing and joking around about the [sight] of me and my feet being off the ground and my body being pulled into the air. At first, it was comical but I felt like I couldn’t control him. I knew he had to keep climbing or else this strain on me would begin to hurt. So I just cheered him on. I looked around and everyone was just smiling so I figured I wasn’t going anywhere and there was nothing to worry about. Paul looked down and looked a little worried. He asked me if I was ok. I said yes. When Paul finally got to the top, he rang the bell and was ready to let go. When he did, if felt like an extreme pull on me and the assistant came quickly to briefly explain what to do. She told me to hold onto the [brake] (that also releases the rope). I think she thought she was explaining it to me–but she wasn’t. I told her I didn’t know how to use it. She said “its really easy,” just make sure you pull down the level.” She was walking away from me as she was saying this and she seemed very busy with other people. I didn’t think it would be too difficult. As I pulled the lever, Paul began to come down fast and I honestly don’t remember what I was thinking. I tried to grab the rope [**32] but it just stung my fingers and I knew I couldn’t stop it that way. I kept trying to figure it out quickly. The girl to my right [*1263] was helpless as well. The rope was just flying out her hands. I looked up and Paul’s feet, then butt, hit the rocks very fast and head hit very hard on the wooden frame around the rocks.

My feeling throughout the rock-climbing activity was that I was alone and assigned to do it because I had to. I wasn’t comfortable at all but the assistant felt I was well taken care of. Even though I didn’t answer her twice when she asked for volunteers, so she called me out and handed me the [belay]. But I did want to be a part of the team and help but had never done it before and was pretty intimidated.

Even if we were permitted to import the specific reference to negligent conduct from the hold harmless/indemnity paragraph into the Release, that paragraph suffers from another infirmity. It is overly broad. It purports to release NNU and its agents and employees from any claims for property damage or bodily injury “however caused, resulting from, or arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge [**33] Course Adventure Program.” The sweeping nature of the provision runs afoul of the specificity requirements noted in sections 52 and 53 of American Jurisprudence. This Court has found a similar all-encompassing provision in a lease agreement to be overly broad. In Jesse v. Lindsley, we dealt with an exculpatory clause that attempted “to relieve the landlord of liability for any type of injury, wherever it may occur.” 149 Idaho at 76, 233 P.3d at 7. We held, “The clause is too broad and does not speak clearly and directly to the particular conduct of the defendant intended to be immunized,” citing Anderson & Nafziger, 100 Idaho 175, 178, 595 P.2d, 709, 712 (1970). We stated:

While we have not considered the question of the enforceability of an overbroad exculpatory clause, we have considered the issue of enforceability of an overbroad contract provision in another area where a contractual provision is disfavored and strictly construed–covenants not to compete in contracts of employment. See Freiburger v. J-U-B Engineers, Inc., 141 Idaho 415, 420, 111 P.3d 100, 105 (2005). A covenant not to compete is reasonable and enforceable only if the covenant “(1) is not greater than necessary to [**34] protect the employer in some legitimate business interest; (2) is not unduly harsh or oppressive to the employee; and (3) is not injurious to the public.” Id. Applying the same principle here, it appears that the language absolving Lindsley of any liability for any occurrence anywhere on his property is simply too broad.

Id. at 76-77, 233 P.3d at 7-8.

In its opinion, the Court nicely summarizes some of our pre-Jesse cases regarding the degree of specificity required in a lease provision, and in my view none of those cases preclude the result I suggest here. In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), the plaintiff was injured when the saddle on a rented horse slipped, causing the horse to buck. Id. at 977, 695 P.2d at 362. The Court found that the plaintiff’s action was precluded by an agreement he signed acknowledging that he assumed the risk of riding and holding the defendant “harmless from every and all claim which may arise from injury, which might occur from use of said horse and/or equipment.” Id. Although the Court articulated little reasoning for its holding, a fall from a horse due to a loose saddle is a danger inherent in horseback riding itself. Thus, the [**35] agreement’s language was sufficient to put the plaintiff on notice of that risk. Of interest, however, is that the release specifically identified the “equipment” as a potential source of injury, which is not the case here.⁶ In H. J. Wood Co. [*1264] v. Jevons, the Court evaluated a sales contract for an irrigation pump stating the seller “shall not be liable for damage or for consequential damage, particularly including loss or damage for diminution or failure of crops … whether due to improper installation or performance of the machinery or otherwise.” 88 Idaho 377, 378, 400 P.2d 287, 289 (1965). The plaintiff’s claims for crop loss in that case all stemmed from the allegation that “the pump never functioned properly” and the consequences of that malfunction, which is clearly and directly contemplated by the “performance of the machinery” language in the agreement. See id. Thus, the Court correctly applied the rule.

6 In this regard, a case cited in section 53 of American Jurisprudence is relevant. In Beardslee v. Blomberg, 70 A.D.2d 732, 733, 416 N.Y.S.2d 855 (N.Y. App. Div. 1979), a spectator at a stock car race volunteered to take part in a “Powder Puff Derby,” a stock car race for women. When the spectator’s [**36] car struck a retaining wall of the race track, she alleged the defendant raceway was negligent in “providing her with an unsafe vehicle, a defective helmet, and in failing to supply her with a fire suit.” Id. The defendant relied on a release she had signed to bar her claim (the language of which is not entirely quoted in the opinion), but the New York Supreme Court, Appellate Division, stated:

The release absolves the defendants from liability for any injury plaintiff might sustain while in the “restricted area”, which includes the race track proper. It does not, however, specifically refer to equipment furnished by the defendants. Releases from liability for negligence are closely scrutinized and strictly construed, and a release general in its terms will not bar claims outside the parties’ contemplation at the time it was executed …. Furthermore, since the release herein is not entirely free of ambiguity, an issue of fact exists as to whether the risk of faulty equipment or the failure to furnish essential equipment was within the contemplation of the parties at the time it was executed ….

Id.

Another irrigation equipment contract case, Rawlings v. Layne & Bowler Pump Co., was [**37] similar. 93 Idaho 496, 465 P.2d 107 (1970). There, the claim for crop loss was based on negligent installation of pumping equipment, and the Court barred the claim based on an agreement exculpating the seller from liability for consequential damage “due to installation … of the property sold hereunder.” Id. at 497, 465 P.2d at 108.⁷ Although the particular negligent conduct was not addressed, further specificity was not necessary to put the buyer on reasonable notice of the claim he was waiving. Id. Buying any item under a contract specifically limiting liability for defects in installation clearly brings to mind the discrete array of possible installation-related conduct that entails. Such a contract does far more to notify the signer than simply including blanket language barring liability for any type of negligent conduct imaginable.

7 The contract later specifically identified negligence of the seller as a possible cause. Id.

Similarly, in Steiner Corp. v. American District Telegraph, the defendant contracted with the plaintiff to perform two discrete services–to install and maintain a fire detection system. 106 Idaho 787, 683 P.2d 435 (1984). When the defendant failed to check [**38] the batteries of the system for eight months, the system failed to detect a fire in the plaintiff’s building. Again, the Court found that such negligence fell under an exculpatory clause holding the defendant harmless for “loss or damage due … to occurrences … which the service is designed to detect or avert” resulting from “performance or nonperformance of obligations imposed by this contract or from negligence” of the defendant. Id. at 789, 683 P.2d at 437. This agreement specifically spoke to the alleged conduct by expressly referring to the discrete duties under the contract–to install and maintain. In signing the agreement, the plaintiff undoubtedly understood he was giving up claims for fire damage arising from failure to maintain the system, which reasonably included checking the batteries.

Conversely, in Anderson & Nafziger, the Court refused to find that a sales agreement for irrigation pivots contemplated liability for crop loss caused by delay in delivering the pivots, based on a strict reading of the agreement’s language. 100 Idaho at 178, 595 P.2d at 712. Although the agreement contained blanket language stating that “[t]he Seller will not be liable for damage of any [**39] kind, particularly including loss or damage for diminuation [sic] or failure of crop,” the Court held that the agreement did not apply. Id. The Court stated, “A reading of the total clause indicates that the clause is aimed at limiting the seller’s liability for crop loss which is caused by installation or repair work done by seller.” Id. With a loose reading, the Court might have found that the blanket language exempting liability “for damage of any kind” extended not only to that caused by installation and repair, but also by delay in delivery. However, the Court declined such a broad reading, focusing strictly on the language in the contract.⁸

8 Another case, Empire Lumber Co. v. Thermal-Dynamic Towers, Inc., also shows the Court taking a closer look at an exculpatory clause, although the result there was more obvious. 132 Idaho 295, 971 P.2d 1119 (1998). In Empire Lumber, a lessee sought to apply a lease provision to excuse its liability for a fire allegedly caused by its negligence. Id. The Court disagreed because the lease merely stated, “Except for reasonable wear and tear and damage by fire or unavoidable casualty, Lessee will at all times preserve said premises in as good repair [**40] as they now are or may hereafter be put to ….” Id. at 297, 971 P.2d at 1121. As the Court properly found, that clause clearly only contemplated incidental or unavoidable damage–not negligence. Id.

[*1265] The upshot of these pre-Jesse cases is that where the dangers or risks inherent in a particular undertaking are, or should be, apparent to a reasonable person and where the release agreement employs clear and direct language to negate liability for such risks or dangers, the release will be effective to shield the releasee from liability. On the other hand, where a reasonable releasor cannot be expected to comprehend the risk or danger that results in injury and where the release does not contain language that speaks directly to limitation of liability for injury caused by such risk or danger, the release will not be enforced.

In the situation at hand, it cannot be said that the danger of falling from the rock wall was not readily apparent to any reasonable person. Morrison would surely have known that he could lose his grip or footing and fall. However, the activity involved a danger that was not so readily apparent. This activity involved equipment and a procedure that may have appeared [**41] on the surface to alleviate or eliminate the risk. The belaying rope, like a trapeze artist’s safety net, was there, apparently to protect participants from the danger of a fall. This certainly would give a participant a certain measure of comfort and well being–knowing that the element of danger might well be alleviated or eliminated by the safety equipment. It is one thing to expose a participant to the “dangers inherent” in a particular activity and ask him to waive a consequent claim for damages, but it is quite another to give the participant the illusion of protective measures–thereby providing a false sense of security–and then fail to properly implement those protective measures. It is akin to a bait and switch. If protective measures are carried out in a competent manner, then an accident occurring in the course of the proceedings cannot be held against the sponsor. However, if those protective measures are inherently inadequate, by reliance on untutored or incapable personnel in their handling, the sponsors should not be shielded from responsibility by a waiver signed by an unwitting participant.

It makes sense to encourage sponsors of risky activities to adopt safety measures [**42] designed to alleviate or eliminate the risk to participants. It is not particularly good policy, however, to allow sponsors to escape liability when those safety measures are handled in an incompetent or negligent manner, unless participants are clearly put on notice that safety measures or equipment may not provide the margin of safety that one might reasonably anticipate. Nothing in the Release here indicates the employment of “equipment,” as the language in Lee did, nor of the possibility that any safety equipment might be operated in a faulty manner. Sponsors should be encouraged to adopt safety measures, but they should be held accountable where those measures are performed in a negligent fashion.

In the past, this Court has not been reluctant to embrace concepts of this nature, designed to provide redress where it may not have been previously available. For instance, the Court has adopted the doctrine that, “[e]ven when an affirmative duty generally is not present, a legal duty may arise if ‘one voluntarily undertakes to perform an act, having no prior duty to do so.'” Baccus v. Ameripride Services, Inc., 145 Idaho 346, 350, 179 P.3d 309, 313 (2008). “In such case, the duty is [**43] to perform the voluntarily-undertaken act in a non-negligent manner.” Id. As with a voluntarily assumed duty, it makes good sense and policy to require that an activity sponsor who purports to make a risky activity safe, by the apparent incorporation of protective measures, be required to ensure the protective measures are carried out in a non-negligent manner or provide specific warning to participants that a risk of negligence in that regard inheres in the activity.⁹

9 As we have noted on a number of occasions, “Public policy may be found and set forth in the statutes, judicial decisions or the constitution.” Jesse v. Lindsley, 149 Idaho at 75, 233 P.3d at 6 (quoting Bakker v. Thunder Spring-Wareham, LLC, 141 Idaho 185, 189, 108 P.3d 332, 336 (2005)).

[*1266] For all or any one of the foregoing reasons, I would vacate the judgment of the district court on the ground that the Agreement was ineffective to shield NNU from liability for Morrison’s claim. I would therefore remand for further proceedings.

If you really are bad, a judge will figure out a way to void your release

Posted: November 12, 2012 | Author: Recreation Law | Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Kentucky, Release (pre-injury contract not to sue) | Tags: Appeal, Bull, Bull Riding, Charles, Defendant, Gross negligence, Kentucky, Negligence, Plaintiff, Release, Ring of Fear, Rodeo, United States, Waiver | Leave a comment

Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423

Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.

I guess I knew that these contests happened. I grew up in a rural community where we had greased pig contests, but nothing like this. The plaintiff entered a contest where he went into a rodeo and stood in a white circle. There were other participants also standing in circles. A bull was released into the ring. The last person standing in a white circle won. Prize money was $50.00. The contest was called the “Ring of Fear.” The bull struck the deceased bursting his liver.

$50.00?

The plaintiff’s spouse sued. The deceased prior to entering the ring signed a release. The release was comprehensive but apparently had all participant signatures on one form. Allegedly, the deceased was not given any time to read the release.

Prior to the bull being released into the ring, the bull was allegedly provoked by jabbing him with a wooden object and beating sticks against the bull’s cage. (I’m guessing PETA is not big in this part of Kentucky…….)

The trial court dismissed the complaint based on the release signed by the deceased. The plaintiff appealed.

Summary of the case

The appellate court first looked at the Kentucky Farm Animals Activities Act (FAAA) KRS 247.401 through KRS 247.4029. The court found the statute was applicable to the facts in this case. The court also found that the warnings found in the act provided immunity to defendants who posted the warnings. Failure to post the warnings did not create a claim of negligence per se or strict liability as the plaintiff argued. Failing to post the warnings simply failed to provide the immunity under the statute.

The court also found that the FAAA allowed farm animal event sponsors to sue the act if they posted the warning signs.

The court found that the FAAA had no duty to reduce or eliminate the inherent risks found in farm animal activities. The court also found that act did not protect sponsors that intentionally mistreat or aggravate a farm animal. That would be the antithesis of the purpose of the act.

The court then looked at the issue of the release and stated,

While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. [Emphasize added]

Although not a definitive statement on the issue, it appears that under Kentucky law, a release will protect a defendant against a claim of gross negligence.

Releases in Kentucky will be upheld if they meet the following tests 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.

From a legal point, this is an extremely broad language about how a release will be interpreted by the courts.

The court then examined the release and found no language the court could interpret that could be used to say the release was going to stop a gross negligence claim. The court also found that intentionally mistreating the bull would “at the very least constitute gross negligence.”

The court followed up by stating that infuriating a bull would constitute willful of wanton conduct which “a party may not contract away any liability through a release.”

Finally, the court looked at a laundry list of additional issues raised by the plaintiff:

..that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it.

The court stated that those were all factual issues to be resolved by a trier of fact.

So Now What?

Although the issue that a release in Kentucky may protect against gross negligence is great as well as the broad language that can be used in a release in Kentucky, the last two issues mentioned by the court allow numerous ways to void releases in Kentucky and place a burden upon the business or program operating in Kentucky and using a release.

That is requiring an outfitter to see if a guest has the sufficient skills, ability and desire to undertake the activities and making sure the person signing a release has sufficient time to read the release.

Solving the problems of the Defendant

First, I would have raised an assumption of risk argument, although I am not sure of the status of A/R in Kentucky. However, I believe that it is pretty obvious that you can get gored by a bull in a ring. The deceased and the plaintiff were going to the event for a rodeo so it had to have been obvious, to some extent.

Second by having separate releases rather than one sign-up sheet, the argument that the deceased did not have time to read the release could have been diffused if not eliminated. If each person has a sheet of paper, then there is no rush to get all the signatures on one sheet of paper.

Still to be resolved

The issue that the defendant did not enquire as to the ability of the participant to participate in the Ring of Fire is an open-ended opportunity for every lawsuit in Kentucky to go to trial.

How are you going to determine the requirements for a participant to undertake an activity? No matter what system, test or determination you make, you did not do a good job if someone is hurt or injured on your trip. Nor can you use medical information to determine if someone can participate because unless you are a physician, that would require diagnosis which you cannot do.

The only solution you can come up with to create a system so the participants can self-determine if they are able to participate. Show a video or create a checklist. Make sure your release states that the person has watched the video, seen your website and reviewed the checklist and understands it is their responsibility to determine if they are able to participate in the activity.

This could be a nightmare in Kentucky.

What do you think? Leave a comment.

James H. “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

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,

Outdoor Recreation Insurance, Risk Management, and Law

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.

Connect

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

X, Formerly Twitter

Facebook Logo

Threads

Email: Jim@Rec-Law.US

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

@2012-2023 Summit Magic Publishing, LLC

G-YQ06K3L262

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, 3 Bar F Rodeo, Rodeo, Bull, Ring of Fear, Kentucky,

WordPress Tags: Davis,Rodeo,LEXIS,Appellate,Gross,Negligence,plaintiff,participants,bull,person,Prize,money,Fear,spouse,participant,signatures,Prior,PETA,Kentucky,complaint,Summary,Farm,Animals,Activities,FAAA,statute,warnings,defendants,Failure,event,antithesis,purpose,agreements,Emphasize,Although,statement,defendant,Releases,intention,injury,protection,construction,contemplation,provision,From,laundry,Appellees,abilities,Susan,Charles,trier,fact,guest,skills,assumption,argument,status,extent,Second,sheet,paper,Still,Fire,lawsuit,requirements,system,determination,information,physician,diagnosis,solution,self,checklist,Make,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,upon

Decision concerning bicycle race clarifies Illinois release law.

Posted: October 22, 2012 | Author: Recreation Law | Filed under: Cycling, Illinois, Racing | Tags: Bicycle Racing, Cycling, Illinois, Negligence, USA, USA Cycling | Leave a comment

Hellweg v. Special Events Management, 956 N.E.2d 954; 2011 Ill. App. LEXIS 725; 2011 IL App (1st) 103604; 353 Ill. Dec. 826

The court looked at whether the risk that caused the injury to the plaintiff was listed in the release.

The facts in this case are pretty simple. The plaintiff was a participant in a cycling race on a closed course. A closed course in cycling means that no cars or pedestrians are on the course. The cyclists do not have to worry about traffic laws or hitting someone on a closed course.

While practicing for the race, the plaintiff hit a minor on a bicycle who got on the course. The plaintiff had signed the 2009 USA Cycling Event Release Form, which is required before being allowed to race. The plaintiff filed his claim and the defendants, twelve of them, including the minor he hit, moved to dismiss the case based on the release.

The trial court dismissed all twelve defendants, and the plaintiff appealed.

Summary of the case

There are several interesting facts in this case that were not discussed in the appeal that stood out. In the group of twelve defendants, one was the business that put on the race; five were employees and/or agents of the business; one was the city where the race was held and one was a hospital, as well as the minor and his mother.

It is unclear what the claims against the city and the hospital were, however, it appears from the decision that all the plaintiff’s claims were dismissed including those claims. The mother and the minor were all dismissed. The release is the “usually” USA Cycling release, which did not identify the hospital or city individually or in the people protected by the release.

… RELEASE FROM LIABILITY THE ORGANIZERS OF THIS EVENT AND USA CYCLING, INC. (USAC), ITS ASSOCIATIONS AND THEIR RESPECTIVE

AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, CLUBS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY ‘RELEASEES’)….

The second major issue is the event organizer, and all of these people relied on the USA Cycling Release to protect them. The release is a general release that does not cover anyone, specifically except USA Cycling. It has no jurisdiction and venue class to speak off and does not cover any specific issues of the individual courses. If you are running an event that has something different from the normal race, different type of course, participants, etc. that is something that you would want to make sure you have covered. The court even pointed out how important those issues were in the release. In this case, the USA Cycling release did cover the issues generally, which gave the plaintiff the basis for his appeal.

The plaintiff argued that since the minor on the course was not something that was ordinary in a cycling race like this, he could not envision that was a risk he was accepting when he signed the release. He argued it could not be foreseen that the defendants would fail to close the course.

The court found that the phrase “ANY AND ALL CLAIMS ARISING FROM THE [DEFENDANT’S] OWN NEGLIGENCE.” was sufficient to protect the defendants from the suit. The court also said the test of the issue was not whether or not the risk was foreseen by the defendants but whether the broad language of the agreement would allow the court to say the risks were contemplated by the release.

“[A] myriad of factors, which are either obvious or unknown, may singly or in combination result in unexpected and freakish racing accidents. The parties may not have contemplated the precise occurrence which resulted in the plaintiff’s accident, but this does not render the exculpatory clause inoperable. In adopting the broad language employed in the agreement, it seems reasonable to conclude that the parties contemplated the similarly broad range of accidents, which occur in auto racing.

In coming to this decision the appellate court reviewed the way Illinois reviews a release. As in the majority of the states, releases are valid. They are not favored and construed against the person requesting protection by the release. However, if a release must be given fair and reasonable interpretation.

The court then went through the three issues that void releases in Illinois.

[A]bsent fraud or wilful and wanton negligence, the contract will be valid and enforceable unless:

(1) there is a substantial disparity in the bargaining position of the two parties;

(2) to uphold the exculpatory clause would be violative of public policy; or

(3) there is something in the social relationship between the two parties that would militate against upholding the clause.

The releases or ways to void a release in Illinois are no different than in the majority of other states that have been discussed here before. The court went on to explain the specifics required for a release to be enforceable in Illinois:

An exculpatory clause, to be valid and enforceable, should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. In this way the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution. The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into. It should only appear that the injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.”

This section is a little different from most decisions about releases. The specific language I’m speaking to is “should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care.…” Many courts mention that the injury was caused by a risk specifically set forth in the release. Here the court said that a release must set forth those risks.

This is a specific issue I push. I believe in doing this for more than a requirement by the courts. 1. If the release is thrown out for any reason, the document may still be used as proof of assumption of the risk. 2. If your guests read the release, it may help them understand the risks or self-filter from the activity.

The court also looked at the argument of the plaintiff, that the risks that caused his injury were not foreseeable and dismissed that argument. The court stated the language stating the release covered all claims arising from the defendant’s negligence was broad enough to warn the plaintiff of the risks.

So Now What?

This is a great case that is easy to read if you are working in Illinois in preparing a release for your business or activity.

This is also an added point to make sure your release identifies the risks of your activity to warn the guests of what may befall them.

If you are creating, running or the owner of an event that is “sanctioned” so that everyone who attends has signed someone else’s event, has your own release created. You need to make sure that you and your employees, volunteers, etc. are protected from the unique or different risks of your event. The perfect example of this would be any race above 8000 feet. At that level, there are increased issues with altitude. A normal race would not cover that because those issues could only occur in Colorado. However, that is specifically an issue that someone from sea level could argue was an issue that you failed to warn them about and could not prove you had warned them because you had not had them sign a release that reviewed the risks.

Furthermore, let people know that nothing is perfect. No matter how high the fence, how much police or protective the barriers, people will find a way to get on the course, sneak on the hill, or break into your program.

Better to waste an extra sheet of paper having guests sign a release than reams of paper to defend a lawsuit.

For General Information on Releases see:

Release/Waivers: The basics, the very basics!

Releases 101

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

States that do not Support the Use of a Release

What is a Release?

For specific articles about releases and specific activities see:

Connecticut court works hard to void a release for a cycling event

Four releases were signed and all of them were thrown out because they lacked one simple sentence!

Gross Negligence beats a release…but after the trial

Maine upholds release in a mountain bike race and awards defendants’ costs and attorney fees

Michigan court upholds release in a climbing wall accident where injured climber sued his belayer for his injuries

Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

PA court upholds release in bicycle race.

Poorly written release gave the plaintiffs the only chance they had to win

Release stops suit for falling off horse at Colorado Summer Camp.

Releases are legal documents and need to be written by an attorney who understands the law and the risks of your program/business/activity and your guests/members/clientele.

Texas makes it easier to write a release because the law is clear.

Tough fight on a case, release used to stop all but one claim for a CO ski accident

Wrong release for the activity almost sinks YMCA

For more articles on the issues of cycling see:

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

How to fight a Bicycle Product Liability case in New York. One step at a time.

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

Release for training ride at Triathlon training camp stops lawsuit

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

James H. “Jim” Moss

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 manufacturers, 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

Outdoor Recreation Insurance, Risk Management, and Law

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

Facebook

Threads

X (formerly known as Twitter) logo

Stimulus

Blue Sky

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Special Events Management, Chicago Special Events Management, bicycle race, cycling, closed course,

WordPress Tags: Decision,bicycle,Illinois,Hellweg,Special,Events,Management,LEXIS,Court,injury,plaintiff,participant,cars,pedestrians,laws,Event,Release,Form,defendants,Summary,employees,agents,hospital,FROM,ORGANIZERS,USAC,ASSOCIATIONS,RESPECTIVE,VOLUNTEERS,MEMBERS,CLUBS,SPONSORS,PROMOTERS,AFFILIATES,RELEASEES,organizer,jurisdiction,venue,participants,basis,CLAIMS,DEFENDANT,NEGLIGENCE,agreement,factors,combination,accidents,occurrence,accident,clause,auto,person,protection,interpretation,fraud,policy,relationship,specifics,situations,dangers,degree,scope,decisions,Many,Here,requirement,assumption,guests,self,argument,owner,example,feet,altitude,Colorado,barriers,hill,Better,sheet,paper,reams,lawsuit,General,Information,Releases,Waivers,basics,States,Support,Connecticut,Four,Gross,Maine,mountain,bike,attorney,Michigan,climber,injuries,Ohio,Appellate,horse,Camp,clientele,Texas,Tough,Wrong,YMCA,renter,Product,York,doctrine,Primary,Risk,Triathlon,Judgment,manufacturer,retailer,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Chicago,whether,twelve,exculpatory,enforceable

A group ride by its very nature does not make the leader liable

Posted: September 19, 2012 | Author: Recreation Law | Filed under: Cycling | Tags: bicycle, Bike Rides, Cycling, Fearless Leader, Group Rides, Leader, liability, Negligence | 2 Comments

And just because I lawyer writing in a bicycle magazine says it does, does not change the law.

The article Be a Fearless Leader gives the impression that being a group leader in a ride and offering advice or sprinting at the end is enough to create liability for the leader. IT’S NOT!

To be liable, you must be negligent. Negligence has four components. All four components must be proven for someone to be negligent. Those components or steps are:

Duty
Breach of the Duty
Injury proximately caused by the breach of duty
Damages

Step one is the major stumbling block in a situation like this. What duty does a group ride leader owe to anyone else in the group ride? If everyone is riding voluntarily, then there is no duty unless you create a duty.

To create a duty you must create reliance or a need in someone that you then must fulfill or not ignore. By that I mean in a group ride situation you must say to the other riders either something that makes them think that you are responsible for them. You must say that the ride is safe or something that takes away their ability to be responsible for their own safety.

An example of the first situation would be having someone in the group say something like:

I’ve checked this route out, and I know it is absolutely safe. You can rely on me; this is a safe route. You will not get hurt on this ride.

There will be no cars on the course today.

First of all, who would say something that dumb and secondly, who would rely on that statement.

An example of the second situation would be:

You can only ride behind the group, and you must follow the group. You can’t leave until we get to the finish.

Alternatively;

Run that red light.

In the first situation, you are saying to the people I am the leader, and you can rely upon me for your safety. In the second scenario, you are just being an idiot or a jerk.

The article goes even further. It mentions control and implies that if you pick the route or offer advice, you are in control. What ride doesn’t involve giving advice? What group of cyclists can get together and not start making comments and giving advice (a really boring group that’s who). For that matter what time would you have to get up to start getting a consensus form a group of cyclist on the route? How would you prepare for a route unless someone picked it in advance?

Why would you go on a group ride if you did not think you could learn something and become a better rider? I would get better if I learned a new route, picked by somebody. If someone does not want to do that route today, say fine, ride whatever you want.

The article suggests to not make the ride competitive and to avoid pushing anyone’s limits. Yeah, I want to go out on a group ride and meander in at the end. The end is where it is at. The sprint. Why join a group ride if the ride is not going to push you? Besides why go if you are not going to push me?

The last statement is the icing on the cake. Have the rider’s sign a release written by an attorney. That’s not a group ride that is a competitive ride, a grand fondo or something that everyone pays to enter where they get a shirt. Not many Saturday morning rides hand out t-shirts at the end. Besides who can afford to hire an attorney to write a release just for a non-competitive get together with no leader?

Do Something

The author does not follow his own advice see 11 Ways To Get the Most Out of Your Group Ride where he states that putting the hammer down on a group ride is OK. The author writes great articles on how to sue people. That is how he makes a living, by suing people, drivers and bicycle manufactures. If you don’t want to be sued, get advice from someone who works in that area of the law, preventing lawsuits, not starting them.

The problem is the suggestions in the article on how to run a group ride either make it a “no ride” because no one is going to show up or because you did everything (like getting a release) which makes you a leader and POSSIBLY liable.

Lawsuits get started because you are stupid, mean or nasty 99% of the time. Be nice and you won’t have to worry about the lawsuits. For the other 1% of the time make sure your homeowner’s insurance and/or automobile policy will cover these situations.

Let everyone know that a group ride is fun, hard, people will get dropped, and you are on your own. You can ride or not ride and you dare anyone to try to kick your butt at the end.

Races and big rides where you pay money get sued because they make promises which they fail to keep. Don’t make any promises you can’t keep or that you don’t want to have the world know about. Don’t run your group ride like a race or tell everyone how the ride is going to be done to get a jersey at the end and you’ll be OK.

I have a better idea. Have everyone in your group ride read that article. Anyone who says they like it, agree with it or think it’s right, tell them to go ride with the author because they can’t ride with you. Have everyone else read this article and make sure they understand it.

To read more articles on cycling litigation see:

Connecticut court works hard to void a release for a cycling event

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

Release for training ride at Triathlon training camp stops lawsuit

How to fight a Bicycle Product Liability case in New York. One step at a time.

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

PA court upholds release in bicycle race.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

Maine upholds release in a mountain bike race and awards defendants costs and attorney fees

Posted: July 2, 2012 | Author: Recreation Law | Filed under: Cycling, Maine, Racing | Tags: MAINE, ME, Mountain Bike Racing, Mountain biking, Negligence, Racing, Release, Sugarloaf Mountain | Leave a comment

Lloyd v. Sugarloaf Mountain Corp. et al., 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

The plaintiff argued the release was not valid because the injury occurred during a practice run.

In this case, the plaintiff was injured during a practice run for a mountain-bike race. The plaintiff sued the ski area, Sugarloaf Mountain and the organization that sponsored the race National Off-Road Bicycle Association (NORBA). NORBA is now part of USA Cycling. The name of the race was the Widowmaker Challenge mountain bicycle race. The name was mentioned several times in the opinion.

Before racing the plaintiff had to sign a release to join NORBAwhere he signed a release. He also signed a release to enter the race. The lower court granted the defendants motion for summary judgment and based on an indemnification clause in one of the releases granted the defendants judgment against the plaintiff for $18,420.50.

The plaintiff argued the first release was superseded by the second release, and the second release was ambiguous and vague. He also argued that because the injury occurred during a practice run, the releases did not apply. All parties agreed that the racers had to participate in the practice session.

The NORBA release was a well-written release and excluded claim for liability for negligence of any person or organization. The race release simply said discharge the defendant for all claims and liability and promise not to sue. However, the race release contained indemnification language that allowed the defendants to counterclaim for the costs and attorney fees for defending the lawsuit.

The plaintiff sued for negligence and willful and wanton negligence. The race release gave the plaintiff the idea to sue for willful and wanton negligence I suspect because in the indemnification clause language, it excluded claims for willful and wanton negligence.

However, Maine does not support claims for willful and wanton negligence.

Summary

The court first looked at the releases to see if one release superseded the prior release. To supersede another agreement one agreement must be inconsistent with the other agreement. The court found this was not the case. Although they were similar and overlapped, and one was more specific than the other was not enough to make the releases inconsistent. Nor was there anything in either agreement to indicate that one release was to supersede the other release.

The next issue the court reviewed was whether the releases were valid under Maine law. Maine like most states holds that a release “…must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.”” Releases are strictly construed against the party seeking immunity from liability.

The court found the membership release, the NORBA release that referenced negligence in the release “…sufficiently spells out the parties’ intent to extinguish the negligence liability of NORBA and Sugarloaf”

The court then examined the claim that the practice run where the plaintiff was injured was not sufficiently connected to the race to be covered by the release. However, the court found that since the practice session was mandatory the release covered it. The court also found the language in the release covered the practice run.

The final argument made by the plaintiff was the release was against public policy in Maine. The court stated it would be “hard-pressed” to conclude that an event titled Widowmaker Challenge is a public service or that there was a compulsion on the part of the participants to sign that would make the release void as against public policy.

Finally, the court looked at the indemnification clause in the second or race release. The court found the language was unambiguous and that the plaintiff was contractually bound to indemnify the defendants.

There was a dissent in the case. The dissent argued the release should be upheld but that the indemnification clause in the release was unclear and ambiguous. Under Maine’s law to be clear the language of the release must be unequivocal in its intent:

…on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.

The dissent also found the indemnification clause to be ambiguous. A contractual provision is “ambiguous if it is reasonably possible to give that provision at least two different meanings.”

The dissent found two different meanings to the clause in the defendant’s motions. NORBA’ s briefs argued the clause one way and Sugarloaf’s brief interpreted the clause a different way.

So Now What?

This case is pretty simple and quite clear.

1. Your release needs to include the word negligence under Maine law.

2. Your release must not be written to conflict with any other release that may be used in the same case to prevent litigation. If you are aware of two or more releases being signed by the parties for the same event, make sure the releases do not cancel each other out.

3. Make sure your release covers all aspects of the activity. You can never tell when an accident will occur, where a person will be injured or whether or not someone may sue because of those issues.

4. Although upheld by the majority a dissent always should be read to make sure your release or language incorporates any of those issues in the future. Dissents with a change of the court can become a majority opinion in the future, even with the legal precedent of stare decisis.

5. If you name your event with a scary name, there is a better chance that participants and the courts will understand it was a risk event.

6. Make sure your release is clearly written and written so that the person signing the release cannot argue they did not understand the release.

Sugarloaf needs to thank NORBA for writing a release that protected both of them. NORBA should thank Sugarloaf for at least writing an indemnification clause that worked.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, #NORBA, Mountain Bike, Mountain Biking, Mountain Bike Race, #Sugarloaf, #Maine, #ME,

WordPress Tags: Maine,mountain,bike,defendants,attorney,Lloyd,Sugarloaf,Corp,LEXIS,plaintiff,injury,area,National,Road,Bicycle,Association,NORBA,Widowmaker,Challenge,opinion,judgment,clause,racers,session,negligence,person,defendant,lawsuit,Summary,agreement,Although,intention,Releases,membership,argument,policy,event,compulsion,participants,Under,inference,provision,meanings,litigation,Make,aspects,accident,Dissents,precedent,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,laws,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Race,indemnification,whether

It's not what I write, It's what you Learn

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

What do you think? Leave a comment.

Rate this:

Share this:

What do you think? Leave a comment.

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

To Read an Analysis of this decision see

Rate this:

Share this:

C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

What do you think? Leave a comment.

Rate this:

Share this:

What do you think? Leave a comment.

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82

Rate this:

Share this:

Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.

Summary of the case

So Now What?

Solving the problems of the Defendant

Still to be resolved

This could be a nightmare in Kentucky.

What do you think? Leave a comment.

Connect

Rate this:

Share this:

The court looked at whether the risk that caused the injury to the plaintiff was listed in the release.

Summary of the case

So Now What?

For General Information on Releases see:

For specific articles about releases and specific activities see:

For more articles on the issues of cycling see:

What do you think? Leave a comment.

Rate this:

Share this:

And just because I lawyer writing in a bicycle magazine says it does, does not change the law.

Do Something

What do you think? Leave a comment.

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

Rate this:

Share this:

Summary

So Now What?

What do you think? Leave a comment.

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

Rate this: