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Words and Phrases Defined in an Articles

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

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

Term or Phrase

State

Article that Defines the Term or Phrase

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

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

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

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

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

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

Good News ASI was dismissed from the lawsuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Last Updated April 24, 2018

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Safe, NOTHING is safe, when you advertise telling those who come to your website that your business, activity, or land is safe, you will be writing checks for anything pain, blood, illness or injury that can occur.

Website for park stated it was a safe place for visitors. Plaintiff went to the park because of that statement and when she fell on a rock protruding above the boardwalk, she sued. Is a rock sticking through a boardwalk a risk, normal or at least “not safe.”

The plaintiff was able to claim negligent misrepresentation because the park represented itself as safe. Safe is a Bad work.

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

State: New Hampshire: United States District Court for the District of New Hampshire

Plaintiff: Misha Kendall

Defendant: The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Plaintiff Claims: Negligence, Gross Negligence and Negligent Misrepresentation

Defendant Defenses:

Holding: for the plaintiff

Year: 2017

Summary

The website promoting the private park stated the park was safe. The plaintiff went, paid her fee and got hurt. Therefore, the park was not safe. The plaintiff was able to argue the statements made on the website about safety were negligent misrepresentation; Negligent statements made to induce the plaintiff to come to the park.

The second issue was a gap between a recently passed statute and decisions of the New Hampshire Supreme Court which effectively nullified the two immunity statutes by the legislature to protect the park.

Facts

There is always an issue of “when.” When did the plaintiff actually learn or see, but in this case, the court stated the following facts.

The land is owned by a nonprofit corporation, and is operated by a third party.

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s website, and the Society contributes to and approves the website’s content.

The land is protected from lawsuits by a specific statute that was enacted in 1917.

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River’s reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

So, the relationship with the state is, it is not a state park, but it is protected like one to a major extent.

The plaintiff alleges that was looking for an outdoor activity that would be safe for herself and her two six-year-old children. She went to the website of for the park to look for a “safe way” to view rock formations.

She took herself and her two children to the park, paid the entrance fee and proceeded to a boardwalk. The boardwalk was four feet wide and crowded. The boardwalk turned sharply after a bridge on the say to the Sun Altar cave. The plaintiff’s view was blocked after the turn because of the crowd, a sign and a large tree.

Just after the turn a boulder protruded up through the boardwalk about a foot.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

The plaintiff sued for her injuries.

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

The defendant raised four defenses to the gross negligence and negligent misrepresentation claims of the plaintiff.

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation.

The court first started with the immunity statutes. Besides the specific immunity statute enacted in 1917, there was a more recent statute, RSA 508.14, II.

508:14. Landowner Liability Limited.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

Emphasize added

What never enters the discussion is the fact the plaintiff paid to be on the land, so the recreational use statute, RSA 508.14 should not apply.

The court first decided if the new statute canceled out the old statute and made the termination that it did not. It then examined both statutes stating that the statutes should be strictly construed and viewed as being consistent with each other. Reading the first statute that one, the court found the first statute stopped claims for negligence, but not gross negligence.

The issue though is the New Hampshire Supreme court ruled that New Hampshire does not recognize gross negligence. There is only one form of negligence in New Hampshire, simple negligence.

However, because the statute in question stated that the defendant could be liable for gross negligence or willful or wanton misconduct, the court held the legislature wanted the plaintiff to be able to sue for gross negligence.

Therefore, the plaintiff’s allegations of gross negligence were outside of the immunity afforded by both statutes.

Gross negligence was defined by the court as:

…”very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.”

Based on that definition the court was able to find the boulder built in the middle of the boardwalk was gross negligence.

…Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross negligence in failing to remove or warn of the boulder.

The court tackled the negligent misrepresentation claim next. Negligent misrepresentation is “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” The website stated the place was safe and the plaintiff, in her opinion, found it wasn’t.

The court was not sold on the plaintiff’s allegations, however.

At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation.

Whether the statement on the website was actionable would be based upon several factors: whether or not it was puffing, slight exaggerations to close the sale that everyone knows are not true, the specificity of the statement, the knowledge of the person making the statement and the knowledge of both parties in relation to each other.

The plaintiff argued “that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers.”

The allegations made by the plaintiff were enough for the court not to dismiss them.

Consequently, the plaintiff will be allowed to amend her complaint to add additional claims, which would make the defendants motion to dismiss the original complaint moot.

So Now What?

Marketing makes promises that Risk Management has to Pay For. The marketing promised a safe place to recreate, and the plaintiff received in an injury there; therefore, the place was not safe.

Combine the statements made on the website with the gap between decisions of the New Hampshire Supreme Court and recent statutes in New Hampshire and the plaintiff was effective in keeping her claim alive.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

Misha Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Civil No. 16-cv-428-LM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

June 21, 2017, Decided

June 21, 2017, Filed

CORE TERMS: gross negligence, boardwalk, negligent misrepresentation, immunity, river, boulder, leave to amend, futile, willful, citation omitted, immunity statutes, misrepresentation, nonprofit, website, bridge, repeal, trails, safe, common law right, misrepresentation claim, misconduct, construe, forest, entity, wanton, amend, path, internal quotation marks, formations, futility

COUNSEL: [*1] For Misha Kendall, Plaintiff: Benjamin T. King, LEAD ATTORNEY, Megan E. Douglass, Douglas Leonard & Garvey PC, Concord, NH.

For The Society for the Protection of NH Forests, White Mountains Attractions Association, Defendants: Robert E. Murphy, Jr., Wadleigh Starr & Peters PLLC, Manchester, NH.

JUDGES: Landya McCafferty, United States District Judge.

OPINION BY: Landya McCafferty

OPINION

ORDER

Misha Kendall brings suit against The Society for the Protection of New Hampshire Forests and White Mountain Recreation Association, Inc. alleging claims for negligence and gross negligence arising from her injuries and property damage sustained when she fell on a boardwalk at Lost River Gorge and Boulder Caves in Woodstock, New Hampshire. Defendants move to dismiss the complaint (doc. no. 13).

In response, Kendall objects and moves for leave to amend her complaint (doc. no. 20) to add factual allegations, remove her claim for negligence, and add a claim for negligent misrepresentation based on defendants’ statement on their website. Defendants object to the motion to amend.

The court first addresses Kendall’s motion for leave to amend her complaint, and then turns to defendants’ motion to dismiss.

I. Motion to Amend

In her proposed [*2] amended complaint, Kendall alleges claims for gross negligence and negligent misrepresentation. Defendants argue that the proposed amendment would be futile because they are immune from liability for both claims under 1917 New Hampshire Laws Chapter 19, § 1 (“1917 Law”) and because the proposed amended complaint fails to state a plausible claim for relief. Defendants also argue that the motion to amend is untimely.

Under Federal Rule of Civil Procedure 15(a)(2), the court will grant leave to amend a complaint “when justice so requires.” Despite the broad standard, a “court may deny leave to amend for a variety of reasons, including futility, bad faith, undue delay, or a dilatory motive on the movant’s part.” In re Curran, 855 F.3d 19, 27-28 (1st Cir. 2017) (internal quotation marks and citation omitted).

A. Timeliness

Defendants argue that Kendall’s motion should be denied because of undue delay, based on the time between when Kendall filed the original complaint and when she filed the motion for leave to amend.

Kendall brought suit as a pro se party, filing her complaint in state court on August 8, 2016. After defendants removed the case to this court, counsel entered an appearance on Kendall’s behalf on November 4, 2016. On December 7, 2016, defendant filed a motion to dismiss. [*3] Counsel responded to defendants’ motion to dismiss and then moved to amend on January 19, 2017. As such, the timing does not show undue delay, and defendants have not shown unfair prejudice that would result from allowing the amended complaint.

B. Futility

In the proposed amended complaint, Kendall alleges claims for gross negligence and negligent misrepresentation.1 Defendants contend that the proposed claims are futile.

1 Kendall also substitutes White Mountains Recreation Association, Inc. as the correct legal name for White Mountains Attraction Association.

1. Standard of Review

In assessing, before discovery, whether the claims in a proposed amended complaint are futile, the court uses the same standard that applies to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Curran, 855 F.3d at 28; Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006). The court takes the factual allegations in the proposed amended complaint as true and draws all reasonable inferences in favor of the plaintiff. Morgan v. Town of Lexington, 823 F.3d 737, 742 (1st Cir. 2016). Then, based on that view of the proposed amended complaint, the court determines whether the plaintiff has stated a plausible claim for relief. Curran, 855 F.3d at 28.

2. Background

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s [*4] website, and the Society contributes to and approves the website’s content.

In her proposed amended complaint, Kendall alleges that she was looking for an outdoor activity that would be safe for her and her two six-year-old children. Kendall read about Lost River on its website and noted the descriptions and information provided. In particular, Kendall read that there were boardwalks at Lost River that provided “a ‘safe way’ to view rock formations.” Doc. no. 20-1 at ¶ 9.

On August 8, 2013, Kendall decided to go to Lost River with her children. She was an experienced hiker and dressed accordingly. When she and her children arrived, she paid the entrance fee, and they entered Lost River.

After walking down a sandy path through the forest, Kendall and the children came to a boardwalk and a bridge over a river. The boardwalk was crowded and no more than four feet wide. The boardwalk turned sharply after the bridge on the way to the “Sun Altar” cave. Because of the turn, the crowd, a sign giving information about the cave, and a large tree, Kendall could not see ahead on the boardwalk after the bridge.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height [*5] of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

3. Discussion

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation. Kendall responded to the futility arguments in her reply.

a. Immunity

There are two immunity statutes at issue in this case, and the parties dispute which one applies to the claims in Kendall’s proposed amended complaint.

In 1917, the New Hampshire legislature provided the Society with immunity from liability for any negligence [*6] in constructing or maintaining paths, trails, and bridges. The 1917 Law states:

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

(emphasis added).

A more recent statute, RSA 508:14, II, provides immunity to any nonprofit entity, such as the Society, “that constructs, maintains, or improves trails for public recreational use,” from liability “for [*7] personal injury or property damage.” This more recent immunity statute, however, provides an exception for “gross negligence or willful or wanton misconduct.” RSA 508:14, II states:

Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

(emphasis added).

Defendants contend that Kendall’s claims are futile because the 1917 Law gives them immunity from any claim involving negligence, which they contend includes claims for gross negligence and negligent misrepresentation. Defendants argue that because the 1917 Law is more specific, as it applies directly to the Society rather than to all nonprofit entities, it controls over the more general immunity provision in RSA 508:14, II. Not surprisingly, Kendall argues that RSA 508:14, II, and not the 1917 Law, applies to the claims in her proposed amended complaint. Because RSA 508:14, II provides an exception for claims based on allegations of gross negligence, such as the claims she alleges in her proposed amended [*8] complaint, Kendall asserts that defendants are not entitled to immunity.

At first glance, one might conclude that in enacting RSA 508:14, II, the New Hampshire legislature repealed the 1917 Law by implication. That is, the more recent immunity statute applies to a far broader spectrum of landowners, which would include the Society. The doctrine of “repeal by implication” is generally disfavored, however, especially where, as here, the more recent statute contains no expression of a legislative intent to repeal the 1917 Law. See generally Branch v. Smith, 538 U.S. 254, 273, 123 S. Ct. 1429, 155 L. Ed. 2d 407 (2003) (holding that “repeals by implication are not favored” unless there is “a clearly expressed congressional intention” (internal quotation marks and citation omitted)); Diaz-Ramos v. Hyundai Motor Co., 501 F.3d 12, 16-17 (1st Cir. 2007) (“A general law does not repeal a special law unless such repeal is expressly stated or clearly arises from the legislative intent.”) (internal quotation marks and citation omitted).

Moreover, a court should avoid applying the disfavored “repeal by implication” doctrine where it is possible to read two laws as consistent with one another. Indeed, the New Hampshire Supreme Court directs that where “reasonably possible, statutes should be construed as consistent with each other.” EnergyNorth Nat. Gas, Inc. v. City of Concord, 164 N.H. 14, 16, 48 A.3d 960 (2012) (quoting In re Union Tel. Co., 160 N.H. 309, 319, 999 A.2d 336 (2010)) (internal [*9] quotation marks omitted). Therefore, if possible, the court should construe the 1917 Law and RSA 508:14, II “so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes.” Soraghan v. Mt. Cranmore Ski Resort, Inc., 152 N.H. 399, 405, 881 A.2d 693 (2005) (internal citation omitted).

Another rule of statutory construction at play here calls for the court to narrowly construe immunity statutes. See, e.g., Estate of Gordon-Couture v. Brown, 152 N.H. 265, 267, 876 A.2d 196 (2005). Specifically, the rule requires the court to give a narrow construction to the term “negligent” in the 1917 Law because the Law restricts the common law right to recover for injuries caused by another’s negligence. Id. As the New Hampshire Supreme Court explained, a court must:

strictly interpret statutes that are in derogation of the common law. While a statute may abolish a common law right, there is a presumption that the legislature has no such purpose. If such a right is to be taken away, it must be expressed clearly by the legislature. Accordingly, immunity provisions barring the common law right to recover are strictly construed.

Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 291, 923 A.2d 198 (2007) (internal citations omitted); see also Dolbeare v. City of Laconia, 168 N.H. 52, 54, 120 A.3d 146 (2015) (immunity statutes “in derogation of the common law right to recover, are strictly construed”).

In short, there are [*10] two rules of statutory construction that govern this dispute: courts should strictly construe immunity statutes and, where reasonably possible, courts should construe statutes as consistent with one another. Applying these principles, the court narrowly interprets the 1917 Law’s use of the term “negligent” to exclude gross negligence and wanton or willful conduct. Such a construction renders the scope of the immunity provided in 1917 Law consistent with the scope of immunity provided in RSA 508:14, II.

Defendants contend that New Hampshire law does not recognize a cause of action for gross negligence and, therefore, the term “negligent” in the 1917 Law necessarily includes gross negligence. In support of that assertion, they rely on Barnes v. N.H. Karting Ass’n, Inc., 128 N.H. 102, 509 A.2d 151 (1986), and the New Hampshire Supreme Court’s statement that “New Hampshire law does not distinguish causes of action based on ordinary and gross negligence.” Id. at 108.

By way of RSA 508:14, II, however, the New Hampshire legislature has included just such a distinction. In the context of nonprofit entities that maintain public trails for recreational use, the legislature has defined the scope of immunity by distinguishing between derivative degrees of negligence. Although the 1917 Law predates [*11] RSA 508:14, II, the court is not inclined to ignore the legislature’s unmistakably clear language exempting gross negligence from the scope of immunity in its more recent statute. Cf. Lee v. Chamberlain, 84 N.H. 182, 188, 148 A. 466 (1929) (“[W]here such doctrine is made the basis of a legislative rule, enforceable here, it cannot be treated as meaningless.”). Thus, the court finds that in the specific context at issue here, New Hampshire law does distinguish between ordinary and gross negligence.

For the reasons explained above, the court can–and therefore must–reasonably construe the 1917 Law and RSA 508:14, II as consistent with one another. As a practical matter, such a construction means that while both statutes provide immunity to defendants for claims based on allegations of negligence, neither provides immunity for claims based on allegations of gross negligence. The court therefore concludes that defendants are not entitled to immunity from Kendall’s claims to the extent they are based on allegations of gross negligence.

b. Merits of the Claims

Defendants contend that even if they are not immune from claims based on allegations of gross negligence or wanton or willful misconduct, the proposed amended complaint does not contain allegations that rise to that [*12] level. They also assert that the proposed amended complaint does not adequately allege a claim for negligent misrepresentation.

i. Gross Negligence

Gross negligence has been interpreted to mean “very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.” Beane v. Beane, 856 F. Supp. 2d 280, 307 (D.N.H. 2012) (internal quotation marks and citation omitted); see also Colston v. Boston & Me. R.R., 78 N.H. 284, 99 A. 649, 649 (1916) (noting “gross” in gross negligence means great and “willful” means with conscious knowledge).

In the proposed amended complaint, Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross [*13] negligence in failing to remove or warn of the boulder.

Drawing all reasonable inferences in Kendall’s favor, the proposed amended complaint sufficiently alleges gross negligence. Accordingly, the doctrine of futility does not bar Kendall’s request for leave to amend her complaint to allege a claim based on gross negligence.

ii. Negligent Misrepresentation

Defendants also contend that the proposed amended complaint does not adequately allege a claim for negligent misrepresentation. Kendall’s negligent misrepresentation claim is based on defendants’ statement on their website that there were boardwalks at Lost River that provided a “safe way” to view rock formations.

To state a claim for negligent misrepresentation, a plaintiff must allege facts that show “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” Wyle v. Lees, 162 N.H. 406, 413, 33 A.3d 1187 (2011). Defendants contend that the alleged misrepresentation identified in the proposed amended complaint is merely an opinion, not a statement of fact, and, therefore, cannot be the basis of a negligent misrepresentation claim.

Although statements of opinion do not generally provide a proper basis for a claim for misrepresentation, [*14] under “certain circumstances, an opinion may constitute the basis of fraud or misrepresentation.” DePalantino v. DePalantino, 139 N.H. 522, 524, 658 A.2d 1207 (1995) (citing cases); see also Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-cv-040-LM, 2014 U.S. Dist. LEXIS 54183, 2014 WL 1572559, at *16 (D.N.H. Apr. 18, 2014). At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation. See, e.g., Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (“Whether a statement is an actionable statement of ‘fact’ or mere ‘puffing’ depends upon a number of factors, including the statement’s specificity, the speaker’s knowledge, the comparative levels of the speaker’s and the hearer’s knowledge, and whether the statement relates to the present or the future.”).2

2 Defendants also assert that the negligent misrepresentation claim is not based on allegations of gross negligence or willful or wanton misconduct and, therefore, they are immune from liability under both the 1917 Law and RSA 508:14, II. Viewed generously, however, the proposed amended complaint alleges that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers. Whether defendants made the alleged misrepresentation with gross negligence requires factual development and cannot be determined at this stage of the litigation.

Defendants also contend that Kendall has not alleged damages that may be recovered for negligent misrepresentation. A plaintiff is entitled to her economic losses caused by a defendant’s negligent misrepresentation but is not entitled to damages for emotional distress. Crowley v. Global Realty, Inc., 124 N.H. 814, 817-18, 474 A.2d 1056 (1984).

Kendall makes no demand for damages in her proposed amended complaint that is specific to her negligent misrepresentation claim. Instead, at the conclusion of the proposed amended complaint, Kendall requests damages [*15] for medical expenses, lost wages and employment benefits, destroyed property, emotional distress and inconvenience, and loss of the enjoyment of life. Although she cannot recover for emotional distress and loss of the enjoyment of life under her claim for negligent misrepresentation, Kendall alleges other damages that are recoverable. Therefore, Kendall’s proposed negligent misrepresentation claim is not futile.

C. Result

The circumstances support allowing Kendall to amend her complaint. Defendants have not shown, at this stage of the case, that Kendall’s claims would be futile. Therefore, Kendall is granted leave to file her amended complaint.

II. Motion to Dismiss

Defendants moved to dismiss Kendall’s original complaint. When the amended complaint is filed, it will supersede the original complaint, making the motion to dismiss moot. Brait Builders Corp. v. Mass. Div. of Capital Asset Mgmt., 644 F.3d 5, 9 (1st Cir. 2011). For that reason, the motion to dismiss is denied as moot.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for leave to amend (doc. no. 20) is granted. Plaintiff shall file the proposed amended complaint attached to document no. 20 as the amended complaint on or before June 23, 2017. Defendants’ motion to dismiss (doc. no. 13) is denied as moot.

[*16] SO ORDERED.

/s/ Landya McCafferty

Landya McCafferty

United States District Judge

June 21, 2017


Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.

Fitness contract included a release which included a clause stating the signor would pay the fitness companies defense costs. Court awarded those costs for defending against claims, which were dismissed by the court; Even though the plaintiff was successful in retaining two claims against the defendant.

McClure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483

State: Texas

Plaintiff: Chase McClure, Misha McClure

Defendant: Life Time Fitness, Inc.

Plaintiff Claims: negligence, gross negligence, common law and statutory premises liability, and negligent misrepresentation claims

Defendant Defenses: Release

Holding: For the Plaintiff and the Defendant

Year: 2014

This is an interesting case, obviously because it is outside the normal outdoor recreation arena and involves a fitness center with a day care. The plaintiff signed up for the defendant fitness center. She arrived one time with her two-year-old son and informed the defendant fitness center employee that it was his first there. She informed the plaintiff that she would place her son in with the younger children.

Later, the plaintiff was told that her son had been injured and that 911 had been called. The facts surrounding the injury are vague, other than the plaintiff arrived to see a defendant day care worker holding ice on the child’s ear. The child later received five stitches in his ear.

There were several issues concerning the service of process on the defendant and eventually a removal to the Federal Court who resolved the issues finding ineffective service against the defendant in the state court claims.

The defendant then moved for summary judgment based on release and its counterclaims against the plaintiff for breach of the Member Usage Agreement.

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

The court first tackled the release and how whether it was effective against the claims of the plaintiff. Under Texas law, a release must satisfy the Fair Notice requirement.

Fair notice requires (1) that a party seeking to enforce a release provision comply with the express negligence doctrine and (2) that the provision be conspicuous. The express negligence doctrine requires a party releasing potential claims against another party for its negligence to express that intent in conspicuous and unambiguous terms in the four corners of the agreement. Conspicuousness requires the releasing language to be written and formatted so that a reasonable person in the position of the person against whom the release is to operate would notice it.

The plaintiff admitted the release met the fair notice requirements but under Texas law, the release could not stop her gross negligence claims. The court agreed.

Texas cases holding that waivers of negligence claims do not give fair notice of an intent to waive gross negligence claims, and the cases holding that preinjury releases of gross negligence claims are contrary to public policy, this court holds that the Member Usage Agreement Ms. McClure signed did not release Life Time Fitness from liability for her gross negligence claims, including the premise’s liability claim based on the Recreational Use Statute, which requires proof of gross negligence.

The court also found that the release failed to release the defendant from the plaintiff’s premises liability claims based on the Texas Recreational Use statute. Premise’s liability claims are based on ownership of the land; although the release in question seemed to cover the issue? No reasoning was given by the court for this decision.

The release did bar the plaintiff’s claims for “for negligence, negligent misrepresentation, and common law premise’s liability.”

The court next went over the issues surrounding whether a release under Texas law would stop claims of minors. The court found Texas law does not allow a release signed by a parent to stop those claims. “A preinjury release executed by a minor child’s parent is not enforceable to release claims against a commercial enterprise for the minor child’s injuries.”

The next issue was whether there was enough evidence to support any claims of the plaintiff. Here was a case where the plaintiff was never able to determine how the child was injured. Consequently, the plaintiff could not prove or provide any evidence of any negligence claims.

The McClures have not identified any evidence of a misrepresentation Life Time Fitness made to the child on which he did or could have reasonably relied. Summary judgment is granted on the child’s negligent misrepresentation claim.

The defendant then asked for the remaining claims of the child to be dismissed because there was no evidence to support any allegations made by the child to support his claims.

Life Time Fitness also seeks summary judgment on the child’s remaining claims, contending that it breached no duty owed to him and that no condition at the childcare facility posed an un-reasonable risk of harm.

The only evidence to support this claim was the plaintiff stated that any employee of the defendant had told the plaintiff here son had been injured in the play area designated for older children. This was sufficient to support this claim at this time. “Although the record is scant, it is sufficient to withstand summary judgment as to the child’s claims other than for negligent misrepresentation.”

The court then ruled on the counterclaim of the defendant. It seems like the motion was not answered by the plaintiff. The defendant then argued was a failure to deny, and they should be granted a default judgment. However, the court did not come to that same conclusion. The court then looked at the clause in the contract.

The clause in the release was entitled “Life Time’s Fees and Costs.”

This clause stated that if Ms. McClure asserted a negligence claim against Life Time Fitness, she would pay “all reasonable fees (including attorney’s fees), costs, and expenses incurred by Life Time (“Life Time’s Fees and Costs”) to defend (1) the Negligence Claim(s) and (2) all other Claims based on the same facts as the Negligence Claim(s).” Ms. McClure argues that she did not breach the Member Usage Agreement because she asserted claims for gross negligence.

Although the plaintiff was successful in two of her five claims, the court felt that she had breached the release and sued, therefore, the claims that were dismissed were enough to trigger fees and costs clause.

Life Time Fitness is entitled to the damages provided for in the Member Usage Agreement: the fees it reasonably incurred in defending solely against Ms. McClure’s claims for negligence, negligent misrepresentation, and common-law premises liability.

The court was specific in its ruling that the fees and costs to be paid by the plaintiff and awarded to the defendant were only the costs the defendant incurred in defending the three claims that were dismissed by the court.

Summary judgment is granted to Life Time Fitness on Ms. McClure’s claims for negligence, negligent misrepresentation, and common law premises liability to invitees. Summary judgment is denied on Ms. McClure’s claims for gross negligence and for premises liability under the Recreational Use Statute. Summary judgment is granted on the minor child’s negligent misrepresentation claim and otherwise denied. Life Time Fitness’s motion for summary judgment on its counterclaim is granted only for reasonable fees incurred in defending against Ms. McClure’s negligence, negligent misrepresentation, and common law premises liability claims, and is otherwise denied.

So the plaintiff was left with a gross negligence claim and a premises liability claim. Her son’s claim for negligent misrepresentation also survived, but barely.

So Now What?

Do Not Rely on this decision to believe that you can recover attorney fees when defending yourself in court when a release has been signed by the plaintiff. This is only the third time I have seen a case like this and there are 25 times more decisions denying these claims.

Most of these claims are struck down because the language is poor, and the case is similar to this forcing a parent to decide whether they should risk suing on behalf of their injured child. Other than this case, courts have uniformly denied those claims.

The two other cases I have found dealt with a skydiving where the plaintiff’s allegations were at a minimum quite wild and the other the plaintiff was an attorney. In both cases, it seemed the court found enough to hit the plaintiff with fees because the court did not like them.

You do not see any of the rancor or scorn in this case. It is a factual review of the facts, the release and a simple decision. You signed the agreement promising to pay if this happened, therefore, you must pay.

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Do you have contracts with all of your athletes? Manufacturers who provide more than swag to athletes may be sued without a written agreement.

In this case the manufacturer one because the damages were not able to be proven, however, this is just the tip of the iceberg on what could happen. What if the rider was injured, and you were their largest contributor to their income?

Rogatkin v. Raleigh America Inc., 69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154

State: Massachusetts, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAS-SACHUSETTS

Plaintiff: Nicholi Rogatkin, Minor by His Father and Next Friend, Vladmir Rogatkin

Defendant: Raleigh America Inc./Diamondback BMX, and John Does 1-8

Plaintiff Claims: : unauthorized use of name and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I); unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II); defamation (Count III); negligent misrepresentation (Count IV); unjust enrichment (Count V); promissory estoppel (Count VI); and intentional misrepresentation (Count VII).

Defendant Defenses: No evidence and No damages

Holding: for the defendant

Year: 2014

The plaintiff was a very talented BMX rider starting at a very early age. The defendant started sponsoring him at age 11 in 2007. That sponsorship continued for five years until 2012 when the plaintiff moved on to another sponsorship. During that time, the sponsorship started as a bike and other equipment and grew to a monthly income and travel expenses. During that time the plaintiff wore the defendant’s logos and sent photographs and videos to the defendant to be used on their website.

The plaintiff one year flew out to the defendants, at the defendant’s expense to be photographed for the defendant’s catalog. The defendant started asking for in 2010 and was told that he had a great career ahead of him.

Prior to receiving income, the plaintiff and defendant did not have any contract between them. Once the defendant started receiving a monthly income the plaintiff signed a Team Rider Sponsorship Agreement. The agreement was signed by the plaintiff’s father on behalf of the plaintiff. The agreement provided the plaintiff with a monthly payment, and the defendant got unlimited promotional use of the plaintiff’s name and likeness.

At no time, was the plaintiff restricted from receiving sponsorship from other manufacturers. Eventually, the plaintiff was picked up by other manufacturers, including other bike manufacturers. Eventually, he went to one of the manufacturers as a high-paid rider and left the defendant. Soon thereafter the plaintiff, by and through his father, sued the defendant. The claims total seven counts.

unauthorized use of name and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I);

unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II);

defamation (Count III);

negligent misrepresentation (Count IV);

unjust enrichment (Count V);

promissory estoppel (Count VI);

and intentional misrepresentation (Count VII).

Basically, the plaintiff sued to get more money believing that he was not compensated enough by the defendant for his work prior to leaving. He did not win any of these arguments. The judge granted the defendants motion for summary judgment.

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

The decisions starts with an analysis of the defamation claim. To prove defamation on Massachusetts law the plaintiff must prove:

…the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss.

The plaintiff based his claims on the theory that the defendant did not change the photos on its website fast enough to match the growth of the plaintiff and his riding larger bikes. For a year or so after he had advanced from a 16” (wheel size) bike to 18” then 20” bikes he was pictured on the website riding 16” bikes.

Although Rogatkin admits that the accused material was accurate and non-defamatory when published, he contends that as he grew in age and skill, his static portrayal by Raleigh took on a defamatory undertone.

Because the information was valid at the time it was posted, and the plaintiff’s date of birth was on the site, the court found no major issue with not changing photographs as quickly as the plaintiff wanted. The court even had fun with this argument.

Although Raleigh did not update Rogatkin’s biography with the march of time (the court knows of no duty the law imposes to do as much), it published Rogatkin’s accurate date of birth on the same page — a reasonable assurance that the public would never confuse Rogatkin with, say, Peter Pan or Benjamin Button.

More importantly the plaintiff could not offer any evidence showing that by failing to change the photographs, he had suffered an injury.

A false statement is defamatory if it “would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community

The court then had fun and brought in Shirley Temple in its analysis of the negative publicity claimed by the plaintiff.

The publication of Rogatkin’s age (12) and characterizing him as a “kid” in a biography is no more susceptible to a defamatory meaning than biographical references to Ambassador Shirley Temple as a child actor or as “America’s Little Darling.

A biography, like a photograph, is a faithful snapshot of a person taken at a particular time in his or her life.

The court also looked at the argument made by the plaintiff as one of not suffering injury from not showing him riding larger bikes, but of failing to post more images of him on larger bikes, which could not be actionable.

Rogatkin alleges that Raleigh’s continued publication of images of him as a 16-inch bike rider led to ridicule and scorn because he was not shown riding a larger bike. This is not an objection to the publications, but to the lack of publication of photos showing Rogatkin riding larger bikes. Rogatkin has not identified any support for the novel proposition that the absence of publication may form the basis of a defamation claim.

The court then looked at the first count, unauthorized use of the name and image of the plaintiff.

The statute at issue allows a private right of action when an image had been used for commercial advertising without the consent of the person. The defendant argued that the emails between them showed consent to use the images. The court agreed.

…Rogatkin does not disagree that he condoned Raleigh’s use of his name and images for purposes of advertising at the time of publication, or that he attended the various photo shoots (such as the one in Seattle in 2008) with any expectation other than that his name and image would be used by Raleigh to promote sales of its bikes.

The court also brought up the fact the emails from the plaintiff complained they were not posting enough photographs of him on the defendant’s website. Again, the plaintiff could not show any damages from the posting of his images. Just because Raleigh made money from using his injuries is not damages for injury upon the plaintiff. “Because Rogatkin has adduced no material evidence of damages attributable to the use of his name and image, Raleigh is entitled to summary judgment on Count I.”

Next the court took on claims IV, VI and VII, Intentional/Negligent Misrepresentation, and Promissory Estoppel.

Under Massachusetts’s law to win a claim of misrepresentation, the plaintiff had to show false statement that induced him to do something.

To sustain a claim of misrepresentation, a plaintiff must show a false statement of material fact made to induce the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiff’s detriment. . . . The speaker need not know ‘that the statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise expressed, if, through a modicum of diligence, accurate facts are available to the speaker.’

However, even if the defendant had made a false representation, the plaintiff had to prove he was worse off based on the false representation.

…a plaintiff must allege that (1) a promisor makes a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (2) the promise does induce such action or forbearance, and (3) injustice can be avoided only by enforcement of the promise.

The plaintiff could have rejected the sponsorship from the defendant, and the plaintiff was free to contract with other manufacturers for sponsorship.

On top of that, the plaintiff could not prove a promissory estoppel claim because he could not prove any terms or elements to create a legal claim.

Under Massachusetts law, “as with a claim for breach of contract, [i]n order to establish the existence of an enforceable promise under promissory estoppel, the plaintiff must show that the defendants’ promise included enough essential terms so that a contract including them would be capable of being enforced.”

Count V, unjust enrichment was reviewed by the court next.

The plaintiff claimed that the defendant unfairly profited from his work and photographs by paying him minimally. To prove an unjust enrichment claim the plaintiff must show:

(1) a benefit conferred upon the defendant by the plaintiff;

(2) an appreciation or knowledge of the benefit by the defendant; and

(3) the acceptance or retention of the benefit by the defendant under circumstances which make such acceptance or retention inequitable.

Damages from an unjust enrichment claim are the disgorgement of the property unjustly appropriated.

Because unjust enrichment is a theory of equitable recovery, and not a separate cause of action, a court may not order restitution as a form of damages; it may only require a party to disgorge property that has been wrongfully appropriated from the rightful possession of the other party.

First because the relationship between the parties was voluntary there were no fraud or “unjust” actions by the defendant. On top of that, the plaintiff benefited from the relationship just as the defendants did.

He also benefited materially from the relationship in terms of equipment, gear, and travel expenses. If Rogatkin found the terms of his association with Raleigh unsatisfactory, he was free to renegotiate, or leave to pursue other opportunities (both of which he eventually did). Because Raleigh did not unfairly retain any benefit conferred by Rogatkin,….

Here again, the plaintiff could show no damages nor could he even show injury in this case.

The court looked at Count II then, Unfair and/or Deceptive Business Practices under Chapter 93A, a Massachusetts statute.

Here again, the plaintiff did not successfully argue this claim because he could not prove that the defendant was unethical, unscrupulous and a fraud.

Rogatkin has not shown that Raleigh’s actions fell within “the penumbra of some common-law, statutory, or other established concept of unfairness . . . or [was] immoral, unethical, oppressive or unscrupulous . . . [or] cause[d] substantial injury to consumers (or competitors or other businessmen).

These arguments were all based in fraud or contract. In all cases, the damages cannot be what the defendant got from third parties but what it cost the plaintiff in dealing with the defendant. Here the plaintiff could not show any damages that qualified, in fact, the court found the plaintiff had benefited from the relationship and at worse was a bad negotiator.

So Now What?

Once you put someone’s image on your website or your give something, specifically to someone based upon their relationship with your product you better have that relationship in writing.

Once you hand product to someone to sue in an effort to promote your product and create a long-term relationship with that person that is not defined by other facts, such as product testers, writers, reviewers, etc., you might look at immortalizing that relationship in writing.

Most states have laws concerning the unauthorized use of someone’s likeness without their permission. That is an easy reason to see why you should have an agreement.

The facts here are another reason. A written contract outlining the relationship from the beginning would have eliminated this lawsuit.

However, this can get worse.

The IRS wants to know what your relationship is. Without an agreement, the IRS is free to determine that relationship on its own with little help. (Although a contract is not persuasive, it helps when dealing with the IRS.) If the sponsored athlete is only sponsored by you and uses your equipment and does not pay taxes, the IRS can look to you for failing to pay withholding for the “employee.” The IRS wants it money and will work hard to get it from anyone who can write a check easily.

Another group that wants money is the athlete’s health insurance carrier or the unpaid hospital and doctors if the athlete does not have any insurance. The health insurance carrier through its subrogation clause can look to anyone it believes is legally responsible for the damages it paid out for the injured athlete’s medical bills. The insurer may see the action as the same way the IRS does; the injured athlete was an employee and should have been covered under your worker’s compensation insurance. A successful lawsuit on this issue will not only cost you money in paying the health insurance company, but double more for penalties to your worker’s comp carrier for not listing the athlete.

The health insurance carrier could also come after you if it believes the bike or another product was defective. Again, a contract with the athlete would eliminate both arguments.

Unpaid medical bills can also trigger claims based on either an employee theory or on the legal theory that you were legally responsible for encouraging the athlete.

It is easy to get these contracts written. You need to specify general issues like medical coverage, health insurance, taxes and the legal definition of the parties and that relationship. More importantly you need to define what you are going to do and all limits to that relationship so that no matter who or what, they cannot exceed the limits placed in the agreement.

You want to get your product out there, and you want to help up-and-coming athletes. However, taking the time to establish legally the relationship will make everyone’s life easier from the start.

Who knows, fifty years from now, that signature on an athlete’s first contract might have value in itself.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

 

 

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