South Dakota in Federal District Court decision seems to allow a release to stop the claims for a minor.
Posted: October 19, 2020 Filed under: Assumption of the Risk, Risk Management, Snow Tubing, South Dakota | Tags: appreciated, assumption of the risk, bottom, Careless, Collisions, deliberate, depo, descended, descent, genuine, Gross negligence, Guests, Negligence, nonmoving, Reckless, recommends, Release, Resort, Slope, slower, Snow Tubbing, State of Mind, station, tear, top, Tubbing, tube, tubers, Wanton, Willful and Wanton 2 CommentsRelease was effective in stopping ordinary negligence claims; however, the gross negligence claims were allowed to continue.
Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583
State: South Dakota, United States District Court for the District of South Dakota, Western Division
Plaintiff: Brad Reed, Individually and as Joint Limited Conservators of I.R., a Minor; and Tara Reed, Individually and as Joint Limited Conservators of I.R., a Minor
Defendant: Union Resort, LLC, dba Mystic Miner
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: Release
Holding: For both plaintiff and defendant, but proceeding to trial
Year: 2018
Summary
The minor child was injured on a tubing hill when her tube stopped in the middle of the hill, and she was hit and injured by her brother coming after her. The release the parents signed stopped the ordinary negligence claim but under South Dakota, law did not stop a claim for gross negligence.
There was no discussion in the decision as to whether the release stopped the claims of the minor child, the injured plaintiff. It just seemed to be taken for granted by the court, or at least not argued by the plaintiffs.
Facts
On March 13, 2015, Brad and Tara Reed brought their children to the defendant’s resort near Lead, South Dakota, for an afternoon of recreational snow tubing.1 The resort was owned and operated by Union Resort, LLC, dba Mystic Miner. Among the Reeds’ children with them that day was seven-year-old I.R. Accompanying the Reeds were another couple and Alex, a social worker from the Philippines.
Upon arriving shortly before noon, the Reed party entered the lodge area where customers are required to check in and purchase admission tickets for the resort. The Reeds purchased snow tubing day passes for themselves and their children, including I.R. As a condition of allowing I.R. to use the resort, Union required the Reeds to agree to a written release of liability. The Reeds signed the release and printed the names of each of their children, including I.R., as participants.
The Reeds understood the document was a release of liability agreement and that, by signing, they would be relinquishing certain unspecified rights. They did not ask any questions about the release. The release informed resort participants that tubing activities are extremely hazardous and can result in personal injury. The Reeds understood that tubing carried with it a degree of risk, including risk of trauma to the head, and that I.R. would be exposed to this risk.
After signing the release and paying the admission fee, the Reeds and their kids received individual tickets for the tube park. Those tickets included additional warnings.
At the resort, there are numerous bright red signs that provide instructions and warnings to participants. Among the messages on some of the signs was a warning that collisions with other tubers was one of the dangers of tubing. Other signs instructed the tubers to follow the attendant’s instructions and to wait for the attendant’s signal before starting [down the tube run]. The Reeds do not recall whether they saw or read any of these signs.
The Reeds were directed to select tubes from the resort’s selection of tubes, which they did. Defendant had approximately 50 to 70 tubes in inventory at the time, but there is no evidence how many of these tubes had already been selected by prior guests. No employee of defendant selected the tubes for the Reeds. Several defendant employees testified at their depositions that it was a practice at the resort to leave tubes with tears in the bottoms in circulation for guests to use. The employees explained that such tubes were slower and slower equated to safer in their minds.
During the Reeds’ stay at the resort, they went down the tube runs approximately 15 to 20 times. Two of the four tube runs at the resort were open that day. During the Reeds’ runs, there were two defendant employees at the bottom of the tube runs assisting guests with the tow rope (which towed guests to the top of the run).
On approximately two of the Reeds’ 15-20 tubing runs, there was a young man at the top of the tube runs who also appeared to be a resort employee with a radio in his possession. However, the young man never monitored the tube runs, never gave instructions to tubers, and never staged tubers going down the tube runs. “Staging” means controlling the entry of guests onto the tube runs to ensure that the prior tuber has finished the run and cleared the area before the next tuber is allowed to begin his or her descent. There was no staging and, instead, tubers decided themselves when to begin their descent, a situation Brad Reed described as a “free-for-all.”
At approximately 2 p.m., the Reeds decided to take one last run down the tube runs before leaving the resort. Up to this point, the Reeds had experienced no concerns or incidents. Up to this final run, I.R. had always completed her run down the slope as part of a group or with one of her parents. On the final run, she asked to be allowed to go down the tube run by herself, to which her parents agreed. Mrs. Reed told I.R. they would go down the run together, parallel to each other in each of the two open tube runs. At this point, Alex was directly behind I.R. in line for the same tube lane. Mr. Reed was behind Alex in the same line.
Once both lanes were clear, Mrs. Reed and I.R. began their descents. Mrs. Reed went all the way down the run, but I.R.’s tube stopped approximately 3/4 of the way down the slope. While I.R. was stopped, Alex began her descent before I.R. cleared the lane. When Alex’s tube reached I.R.’s tube, they collided. No defendant employee told Alex to begin her descent, but no defendant employee was present at the top of the run to tell her, instruct her, or prevent her from beginning her descent until I.R. cleared the lane.
From the top of the slope, Mr. Reed testified Alex should have been able to see I.R. had not cleared the lane had Alex been paying attention. Mr. Reed himself was able to observe the collision from his vantage point at the top of the slope.
After the accident, the Reeds observed an approximately 8-inch hole in the bottom of I.R.’s tube that had filled with snow. Defendant asserts it was its policy to stow the tubes under the deck each night and to pull them out the next day for guests’ use. Defendant asserts employees were directed to observe the tubes for significant tears or defects and to remove defective tubes during this process. However, several defendant employees testified they left tubes with tears in their bottoms in rotation for guest use because the tears would slow the tuber down as they descended the slope. Employees believed a slower descent was a safer descent.
If a lightweight child descended the slope with a tube with a tear in it, sometimes the tube would stop mid-way down the slope and a defendant employee would have to walk up the slope to retrieve the child. In such an instance, the defendant employee at the bottom of the slope would radio the employee at the top and tell them to stop sending guests down the slope until the child was retrieved and taken to the bottom.
No photograph was taken of I.R.’s tube at the beginning of the day, after the accident, or at any other time on the day of the accident. It is unknown if the tear in the bottom of her tube was there from the start of the day or whether the tear occurred during the Reeds’ use of the tube that day. The Reeds mixed and mingled the various tubes they checked out, so several members of the Reeds’ group could have used the accident tube at various times of the day.
The accident tube was the only tube checked out by the Reed group that had a tear in it. The Reeds did not notice the tear until after I.R.’s injury. The Reeds did not inform anyone at the resort about the tear in the tube after the accident occurred. There is no evidence that any defendant employee had specific knowledge that the Reeds had checked out a tube with a tear in it on the day of the accident, though defendant employees had general knowledge that such tubes were often retained in inventory because they were perceived to be “safer” because they were slower.
From the beginning of the 2010-11 season through the end of the 2014-15 season, defendant had incident reports of 17 collisions of tubers. During that same time frame, there were 72 total incident reports.3 Several of these collisions between tubers occurred within a few weeks and, in two examples, a few days, of I.R.’s collision. Specifically, there were 5 incident reports involving collisions between tubers going down the tube lane between December 30, 2014, and February 27, 2015. None of defendant’s incident reports record whether a hole in a tube contributed to the incident.
Defendant maintains that it had a proper protocol of having at least one employee at the top of the tube run and one employee at the bottom of the tube run at all times. The employee at the top of the tube run was supposed to “stage” the tubers going down. The employee at the bottom of the tube run would retrieve items lost by tubers going down the slope (hats, mittens, etc.) and also retrieve guests whose tubes stopped without fully descending the slope.
The Reeds assert defendant was chronically understaffed and that defendant made a deliberate decision not to station an employee at the top of the tube run the day of I.R.’s accident. Defendant asserts the Reeds have no evidence to support the assertion that the decision not to station an employee at the top of the tube run was a deliberate decision.
Analysis: making sense of the law based on these facts.
The plaintiff’s conceded that the release barred their claims for negligence, the first count in their complaint. That left the issue of whether the release barred their claims for gross negligence and whether they had pled enough facts to support a gross negligence claim.
Gross negligence under South Dakota law is the same as willful and wanton conduct:
Under South Dakota law, the phrase “gross negligence” is synonymous with the phrase “willful and wanton misconduct.” Both phrases refer “to a category of tort that is different in kind and characteristics than negligence.” Negligence occurs when one acts with an “unreasonable risk of harm to another.” Willful and wanton misconduct requires a risk of harm that is “substantially greater than that which is necessary to make the conduct negligent.” The threatened harm “must be an easily perceptible danger of death or substantial physical harm.”
The major difference between ordinary negligence and gross negligence is the mental state of the defendant.
In addition, proof of a negligence claim focuses on the ordinary standard of care, while a gross negligence claim focuses on the defendant’s mental state. A defendant acts willfully and wantonly when it knows or has reason to know at the time of its actions of the dire risk and proceeds without concern for the safety of others. The standard does not require proof of intent to harm, but it does “partake to some appreciable extent … of the nature of a deliberate and intentional wrong.” Gross negligence requires “an affirmatively reckless state of mind.” There must be “a conscious realization that a serious physical injury was a probable, as distinguished from a possible (ordinary negligence), result of such conduct.”
That creates a two-step test to determine if the defendant was grossly negligent.
Summarizing the above case law, gross negligence is distinguished from ordinary negligence by two factors. The risk of harm must be greater for gross negligence—whereas under ordinary negligence, the risk of harm can be anything from negligible harm to death, the risk of harm for gross negligence must be death or serious harm. Secondly, the likelihood that harm will come about, phrased in terms of the defendant’s state of mind, must be greater. For example, if there is a 10 percent chance some harm will happen and the defendant fails to take steps to ensure that harm does not come about, he is merely negligent. If there is an 85 percent chance serious harm or death will happen and the defendant fails to take steps to ensure the harm does not occur, he has acted willfully and wantonly or with gross negligence.
The court’s analysis of the chance of the harm occurring is a way of looking at the differences between ordinary and gross negligence that I have never seen before.
The court looked at the facts as presented by both sides and found both lacking the information the court felt would prove the plaintiff’s case. However, the court made this statement.
Under the law of gross negligence, South Dakota has recognized a plaintiff will rarely have direct evidence of the defendant’s state of mind. Rather, state of mind must be inferred from the circumstances. Id. Also, under the law of summary judgment, all inferences from the facts must be made in favor of the nonmoving party, Both sources of law, then, support taking the Reeds’ view of the inference to be drawn from the fact that defendant was chronically understaffed and did not have an employee stationed at the top of the tube run at the time of I.R.’s accident.
So, with the inferences created by the plaintiffs about the state of mind of the tubing hill, the court held that there was enough information plead to allow the gross negligence claim to continue.
The court then looked at the assumption of the risk argument made by the defendant. There was no case law in South Dakota stating that assumption of the risk was a defense to gross negligence, so the court held that assumption of the risk would not stop the gross negligence claim.
So Now What?
What did not arise in this case is whether the release stopped the claims of the minor child. The case was captioned as the parents suing on behalf of their minor child. In that regard, the release would bar the claims of the parents. However, this is a different way of suing on behalf of a minor, not away normally done in most states any more.
Also, this is a decision by a Federal District Court applying South Dakota law so, whether a not a release stops a minor’s claims is probably still up in the air until the South Dakota Supreme Court decides the issue.
However, it is a decision to lean on if you have participants who are minors in your program.
The other issues are classic situations where the defendant looks at a situation one way as a positive for patrons but the injured patron is able to turn the situation around and use it as a club against the defendant. Torn tubes were regarded by the defendant as good because they were slower than the other tubes. However, a torn tube is not a product that is 100%, in the condition it was received from the manufacturer. It was a defective product. So, the plaintiff was able to show the defendant was derelict in using them.
If they placed the tubes in a different location with a sign that said, slower tubes it might have been helpful.
What do you think? Leave a comment.
Copyright 2020 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
#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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
tube, tubers, resort, top, slope, guests, collisions, tear, bottom, wanton, deliberate, recommends, descent, genuine, depo, reckless, station, appreciated, descended, nonmoving, slower
Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583
Posted: October 7, 2020 Filed under: Release (pre-injury contract not to sue), Snow Tubing, South Dakota | Tags: appreciated, assumption of the risk, bottom, Collisions, deliberate, depo, descended, descent, genuine, Guests, nonmoving, Reckless, recommends, Release, Resort, Slope, Snow Tubbing, station, tear, top, Tubbing, tube, tubers, Waiver, Wanton Leave a commentReed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583
United States District Court for the District of South Dakota, Western Division
November 15, 2018, Decided; November 15, 2018, Filed
5:17-CV-05047-JLV
Brad Reed, Individually and as Joint Limited Conservators of I.R., a Minor; and Tara Reed, Individually and as Joint Limited Conservators of I.R., a Minor; Plaintiffs, vs. Union Resort, LLC, dba Mystic Miner, Defendant.
Subsequent History: Objection overruled by, Adopted by, Summary judgment granted by, in part, Summary judgment denied by, in part Reed v. Union Resort, LLC, 2019 U.S. Dist. LEXIS 49327 (D.S.D., Mar. 25, 2019)
Counsel: [*1] For Brad Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Tara Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Plaintiffs: Kenneth E. Barker, LEAD ATTORNEY, Barker Wilson Law Firm, LLP, Belle Fourche, SD.
For Union Resort, LLC, doing business as Mystic Miner, Defendant: Shane E. Eden, LEAD ATTORNEY, Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, SD.
Judges: VERONICA L. DUFFY, United States Magistrate Judge.
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the amended complaint of Brad and Tara Reed as conservators of I.R., their minor daughter. See Docket No. 16. The Reeds allege claims of negligence and gross negligence against defendant Union Resort, LLC, dba Mystic Miner (defendant) arising out of a tubing accident at defendant’s ski resort. Id. This matter rests on the court’s diversity jurisdiction, 28 U.S.C. § 1332.
Defendant has now filed a motion for summary judgment. See Docket No. 21. The Reeds oppose the motion. See Docket No. 30. The motion was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B), the order of referral dated November 11, 2018 (Doc. 42), and the [*2] October 16, 2014, standing order of the Honorable Jeffrey L. Viken, Chief United States District Judge.
FACTS
Defendant filed a statement of undisputed material facts, Docket No. 22, to which the Reeds have responded, Docket No. 31. The following facts have been drawn from those pleadings with disputes or discrepancies as noted.
On March 13, 2015, Brad and Tara Reed brought their children to the defendant’s resort near Lead, South Dakota, for an afternoon of recreational snow tubing.1 The resort was owned and operated by Union Resort, LLC, dba Mystic Miner. Among the Reeds’ children with them that day was seven-year-old I.R. Accompanying the Reeds were another couple and Alex, a social worker from the Philippines.
Upon arriving shortly before noon, the Reed party entered the lodge area where customers are required to check in and purchase admission tickets for the resort. The Reeds purchased snow tubing day passes for themselves and their children, including I.R. As a condition of allowing I.R. to use the resort, Union required the Reeds to agree to a written release of liability. The Reeds signed the release and printed the names of each of their children, including I.R., as participants. [*3]
The Reeds understood the document was a release of liability agreement and that, by signing, they would be relinquishing certain unspecified rights. They did not ask any questions about the release. The release informed resort participants that tubing activities are extremely hazardous and can result in personal injury. The Reeds understood that tubing carried with it a degree of risk, including risk of trauma to the head, and that I.R. would be exposed to this risk.
After signing the release and paying the admission fee, the Reeds and their kids received individual tickets for the tube park. Those tickets included additional warnings.
At the resort, there are numerous bright red signs that provide instructions and warnings to participants. Among the messages on some of the signs was a warning that collisions with other tubers was one of the dangers of tubing. Other signs instructed the tubers to follow the attendant’s instructions and to wait for the attendant’s signal before starting [down the tube run]. The Reeds do not recall whether they saw or read any of these signs.
The Reeds were directed to select tubes from the resort’s selection of tubes, which they did. Defendant had approximately [*4] 50 to 70 tubes in inventory at the time, but there is no evidence how many of these tubes had already been selected by prior guests. No employee of defendant selected the tubes for the Reeds. Several defendant employees testified at their depositions that it was a practice at the resort to leave tubes with tears in the bottoms in circulation for guests to use. The employees explained that such tubes were slower and slower equated to safer in their minds.
During the Reeds’ stay at the resort, they went down the tube runs approximately 15 to 20 times. Two of the four tube runs at the resort were open that day. During the Reeds’ runs, there were two defendant employees at the bottom of the tube runs assisting guests with the tow rope (which towed guests to the top of the run).
On approximately two of the Reeds’ 15-20 tubing runs, there was a young man at the top of the tube runs who also appeared to be a resort employee with a radio in his possession. However, the young man never monitored the tube runs, never gave instructions to tubers, and never staged tubers going down the tube runs. “Staging” means controlling the entry of guests onto the tube runs to ensure that the prior tuber has [*5] finished the run and cleared the area before the next tuber is allowed to begin his or her descent. There was no staging and, instead, tubers decided themselves when to begin their descent, a situation Brad Reed described as a “free-for-all.”
At approximately 2 p.m., the Reeds decided to take one last run down the tube runs before leaving the resort. Up to this point, the Reeds had experienced no concerns or incidents. Up to this final run, I.R. had always completed her run down the slope as part of a group or with one of her parents. On the final run, she asked to be allowed to go down the tube run by herself, to which her parents agreed. Mrs. Reed told I.R. they would go down the run together, parallel to each other in each of the two open tube runs. At this point, Alex was directly behind I.R. in line for the same tube lane. Mr. Reed was behind Alex in the same line.
Once both lanes were clear, Mrs. Reed and I.R. began their descents. Mrs. Reed went all the way down the run, but I.R.’s tube stopped approximately 3/4 of the way down the slope. While I.R. was stopped, Alex began her descent before I.R. cleared the lane. When Alex’s tube reached I.R.’s tube, they collided. No defendant [*6] employee told Alex to begin her descent, but no defendant employee was present at the top of the run to tell her, instruct her, or prevent her from beginning her descent until I.R. cleared the lane.
From the top of the slope, Mr. Reed testified Alex should have been able to see I.R. had not cleared the lane had Alex been paying attention. See Docket No. 25-5 at p. 7 (depo. pp. 25-26). Mr. Reed himself was able to observe the collision from his vantage point at the top of the slope. Id. at p. 6 (depo. pp. 22-24).2
After the accident, the Reeds observed an approximately 8-inch hole in the bottom of I.R.’s tube that had filled with snow. Defendant asserts it was its policy to stow the tubes under the deck each night and to pull them out the next day for guests’ use. Defendant asserts employees were directed to observe the tubes for significant tears or defects and to remove defective tubes during this process. However, several defendant employees testified they left tubes with tears in their bottoms in rotation for guest use because the tears would slow the tuber down as they descended the slope. Employees believed a slower descent was a safer descent.
If a lightweight child descended the slope with [*7] a tube with a tear in it, sometimes the tube would stop mid-way down the slope and a defendant employee would have to walk up the slope to retrieve the child. In such an instance, the defendant employee at the bottom of the slope would radio the employee at the top and tell them to stop sending guests down the slope until the child was retrieved and taken to the bottom.
No photograph was taken of I.R.’s tube at the beginning of the day, after the accident, or at any other time on the day of the accident. It is unknown if the tear in the bottom of her tube was there from the start of the day or whether the tear occurred during the Reeds’ use of the tube that day. The Reeds mixed and mingled the various tubes they checked out, so several members of the Reeds’ group could have used the accident tube at various times of the day.
The accident tube was the only tube checked out by the Reed group that had a tear in it. The Reeds did not notice the tear until after I.R.’s injury. The Reeds did not inform anyone at the resort about the tear in the tube after the accident occurred. There is no evidence that any defendant employee had specific knowledge that the Reeds had checked out a tube with [*8] a tear in it on the day of the accident, though defendant employees had general knowledge that such tubes were often retained in inventory because they were perceived to be “safer” because they were slower.
From the beginning of the 2010-11 season through the end of the 2014-15 season, defendant had incident reports of 17 collisions of tubers. During that same time frame, there were 72 total incident reports.3 Several of these collisions between tubers occurred within a few weeks and, in two examples, a few days, of I.R.’s collision. Specifically, there were 5 incident reports involving collisions between tubers going down the tube lane between December 30, 2014, and February 27, 2015. None of defendant’s incident reports record whether a hole in a tube contributed to the incident.
Defendant maintains that it had a proper protocol of having at least one employee at the top of the tube run and one employee at the bottom of the tube run at all times. The employee at the top of the tube run was supposed to “stage” the tubers going down. The employee at the bottom of the tube run would retrieve items lost by tubers going down the slope (hats, mittens, etc.) and also retrieve guests whose [*9] tubes stopped without fully descending the slope.
The Reeds assert defendant was chronically understaffed and that defendant made a deliberate decision not to station an employee at the top of the tube run the day of I.R.’s accident. Defendant asserts the Reeds have no evidence to support the assertion that the decision not to station an employee at the top of the tube run was a deliberate decision.
DISCUSSION
A. Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The court must view the facts, and inferences from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)); Helton v. Southland Racing Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). Summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994).
The burden is placed on the moving party to establish both the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Once the movant has met its burden, the nonmoving party may not simply rest on the allegations in the pleadings, but [*10] must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Anderson, 477 U.S. at 256; Fed. R. Civ. P. 56(e) (each party must properly support its own assertions of fact and properly address the opposing party’s assertions of fact, as required by Rule 56(c)).
The underlying substantive law identifies which facts are “material” for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice And Procedure § 2725, at 93-95 (3d ed. 1983)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48.
Essentially, the availability of summary judgment turns on whether a proper jury question is presented: “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine [*11] factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.
B. Does the Release Signed by the Reeds Bar Their Claims?
Defendant’s first argument in favor of its summary judgment motion is that the clear and plain language of the release signed by the Reeds bars their claims and that there is no overriding public policy that serves to neutralize the release.
South Dakota law4 provides that a valid release of liability bars claims for ordinary negligence, but does not bar claims for gross or willful negligence or recklessness. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 792-93 (S.D. 2000). The Reeds do not argue that the release was invalid in any way or that the activity I.R. was engaged in when she was injured was outside the scope of the release. In fact, the Reeds concede that their first claim in their amended complaint for ordinary negligence is barred by defendant’s release. See Docket No. 30 at p. 5. Accordingly, the court recommends that defendant’s motion for summary judgment as to the Reeds’ claim for ordinary negligence, count one of the amended complaint, be granted.
C. Are There Material Factual Disputes as to Gross Negligence?
Defendant argues the facts alleged [*12] by the Reeds, even if true, allege a claim for ordinary negligence only, not gross negligence. Thus, since ordinary negligence is barred by the release, defendant argues it should be granted summary judgment on the Reeds’ gross negligence claim too.
Under South Dakota law, the phrase “gross negligence” is synonymous with the phrase “willful and wanton misconduct.” Fischer v. City of Sioux Falls, 919 N.W.2d 211, 2018 SD 71, 2018 WL 4779267 at *2 (S.D., 2018). Both phrases refer “to a category of tort that is different in kind and characteristics than negligence.” Id. Negligence occurs when one acts with an “unreasonable risk of harm to another.” Id. (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 34, at 212 (5th ed. 1984)). Willful and wanton misconduct requires a risk of harm that is “substantially greater than that which is necessary to make the conduct negligent.” Id. The threatened harm “must be an easily perceptible danger of death or substantial physical harm.” Id. (all quotes from Fischer cleaned up).
In addition, proof of a negligence claim focuses on the ordinary standard of care, while a gross negligence claim focuses on the defendant’s mental state. Id. 2018 SD 71, [WL] at *3. A defendant acts willfully and wantonly when it knows or has reason to know at the time of its actions [*13] of the dire risk and proceeds without concern for the safety of others. Id. The standard does not require proof of intent to harm, but it does “partake to some appreciable extent … of the nature of a deliberate and intentional wrong.” Id. Gross negligence requires “an affirmatively reckless state of mind.” Id. There must be “a conscious realization that a serious physical injury was a probable, as distinguished from a possible (ordinary negligence), result of such conduct.” Id. (all quotes from Fischer cleaned up).
The evidence must show more than “mere mistake, inadvertence, or inattention . . . there need not be an affirmative wish to injure another, but, instead, a willingness to injure another.” Gabriel v. Bauman, 2014 SD 30, 847 N.W.2d 537, 541 (S.D. 2014)). Generally, whether the facts constitute gross negligence is a question of fact “if reasonable minds might differ in interpreting the facts in arriving at different conclusions on whether the defendant was willful, wanton, or reckless.” Id. at 542. “Because willfulness, wantonness, or recklessness is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. Id. at 542-43.
Summarizing the above case law, gross negligence [*14] is distinguished from ordinary negligence by two factors. The risk of harm must be greater for gross negligence—whereas under ordinary negligence, the risk of harm can be anything from negligible harm to death, the risk of harm for gross negligence must be death or serious harm. Fischer, 2018 SD 71, 2018 WL 4779267 at *2. Secondly, the likelihood that harm will come about, phrased in terms of the defendant’s state of mind, must be greater. For example, if there is a 10 percent chance some harm will happen and the defendant fails to take steps to ensure that harm does not come about, he is merely negligent. If there is an 85 percent chance serious harm or death will happen and the defendant fails to take steps to ensure the harm does not occur, he has acted willfully and wantonly or with gross negligence.
The Reeds posit three facts in support of their assertion the defendant in this case acted grossly negligent (or willfully and wantonly) with regard to I.R. First, the defendant had a practice of leaving tubes with tears in the canvas bottoms in rotation for guests to use because the torn tubes were slower and, therefore, in the eyes of defendant’s employees, safer. Second, the defendant knew the importance of staging—having [*15] an employee at the top of the tube run to meter the guests as they descended the slope so that one guest could clear the run before the next guest began descending—but made a deliberate decision not to station an employee at the top of the tube run on the day of I.R.’s accident. And, finally, the existence of prior collisions on the tube run put the defendant on notice of the likelihood of harm.
Neither party speaks to the magnitude of the harm which, as discussed above, is one of the two factors distinguishing ordinary negligence from gross negligence. The defendant does not cite facts or circumstances to show that the prior collisions were minor bump-and-bruise types of encounters. The Reeds do not cite facts or circumstances to show the prior collisions resulted in concussions, closed head injuries, broken bones, surgeries or hospitalizations. The Reeds have supported their assertion that I.R.’s injuries were sufficiently serious—a fractured skull–something defendant does not dispute. Because the moving party has the burden, the court makes all inferences in favor of the nonmoving party. Accordingly, the court infers that previous accidents were sufficiently severe in nature to [*16] satisfy the standard required for gross negligence.
Likewise, with regard to the number of prior incidents, neither party has placed into the record what the total number of tubers was during the period of time covered by the incidents. This fact goes to the likelihood of a collision—for gross negligence, there must be a greater probability of harm occurring than is the case with ordinary negligence. If 17 collisions occurred between fall of 2010 and March 15, 2015, and there were 5,000 tubers during that time, the number of prior accidents takes on one type of significance. But the significance of the number of prior accidents is different if the total number of tubers during that time frame is 100, 300, or even 500. There is a significantly bigger risk of harm the smaller the total number of tubers. Although the defendant alleges there were “thousands” of tubers, it has not supported that assertion with citation to an affidavit, deposition, or authenticated document. Again, there is a lack of evidence.
Also, neither party describes the scope of defendant’s incident reports. Do they encompass all kinds of incidents—those attributable to conditions on the slopes within defendant’s control [*17] as well as incidents attributable to factors not within defendant’s control? Do they encompass heart attacks and strokes as well as collisions? Do the reports include drunken brawls between guests as well as injuries inflicted when a tow bar snaps?
Furthermore, is there any evidence suggesting that not all collisions at defendant’s resort are documented in incident reports? Are the incident reports the tip of the iceberg—or are they truly representative of all injuries occurring at defendant’s resort?
Finally, defendant does not dispute that no employee was stationed at the top of the tube run at the time of I.R.’s accident. The Reeds assert that defendant was “chronically understaffed” and that defendant made a “deliberate decision” not to place an employee at the top of the tube run that day. The Reeds have amply supported their assertion that defendant was chronically understaffed, with the result that positions that should have been filled by employees were left unattended. See Docket Nos. 33-4, 33-5, & 33-8. The Reeds also supplied testimony that, when there were not enough employees, the defendant prioritized putting an employee at the bottom of the tube slope rather than at the [*18] top of the slope. See Docket No. 33-4 at p. 5 (depo p. 20). From these two facts, the Reeds infer that defendant made a “deliberate decision” the day of the accident not to place an employee at the top of the tube slope to stage the tubers.
Defendant disputes that it made a “deliberate decision” not to have an employee staging the tubers that day. Defendant’s disagreement with the Reeds’ assertion is based solely on the fact that they do not have testimony from any witness stating outright that a calculated decision was made. Defendant seems to assert that the Reeds may not rely upon an inference, but must have affirmative evidence of the fact a “deliberate decision” was made.
The court makes two observations. Under the law of gross negligence, South Dakota has recognized a plaintiff will rarely have direct evidence of the defendant’s state of mind. Gabriel, 847 N.W.2d at 542-43. Rather, state of mind must be inferred from the circumstances. Id. Also, under the law of summary judgment, all inferences from the facts must be made in favor of the nonmoving party. Matsushita Elec. Co., 475 U.S. at 587-88. Both sources of law, then, support taking the Reeds’ view of the inference to be drawn from the fact that defendant was chronically understaffed and did [*19] not have an employee stationed at the top of the tube run at the time of I.R.’s accident.
Defendant attempts to eliminate a genuine issue of fact as to the presence of a staging employee by asserting that there was in fact an employee at the top of the tube hill with a radio. See Docket No. 34 at p. 6. In support of this assertion of fact, defendant cites Mr. and Mrs. Reeds’ depositions and argues they cannot claim a version of facts more favorable than their own testimony, an old chestnut of South Dakota Law.
Reading the Reeds’ depositions, however, leads one to conclude defendant’s assertion is, if not outright untrue, certainly misleading. Both Mr. and Mrs. Reed testified no one was at the top of the hill staging the tubers at the time of I.R.’s accident. Docket No. 27-1 at p. 10 (depo. p. 30); Docket No. 27-5 at p. 7 (depo. p. 25). Prior to the accident, both the Reeds had observed a young man with a radio they assumed was defendant’s employee at the top of the hill during one or two of the Reed party’s previous 15-20 tube runs. However, the young man never provided instruction to the tubers about when to go down the slope—he was not staging the tubers. Docket No. 27-1 at p. 10 (depo. [*20] pp. 39-40). Thus, the Reeds have sustained their assertion of fact that defendant had no employee stationed at the top of the tube hill to stage tubers at the time of I.R.’s accident.
Defendant’s motion is decided with resort to two veins of law. First, the law applicable to summary judgment. As the movant, defendant has the burden to show that there are no genuine disputes of material fact and that, based upon those undisputed facts, it is entitled to judgment as a matter of law. All of the absences of crucial fact detailed by the court above cut against defendant as the moving party. Furthermore, all of the inferences from the facts that are present in the record must be drawn in favor of the Reeds. Applying those standards to the issue before the court, the conclusion is inescapable that there are genuine issues of material fact existing which prevent summary judgment in defendant’s favor.
The second vein of law which comes into play is the dictate of South Dakota law that, ordinarily, questions of whether a defendant acted with gross negligence are questions of fact for the jury if reasonable minds could differ as to the inferences to draw from the known facts. Gabriel, 847 N.W.2d at 542. That is the situation [*21] here. The court recommends that defendant’s motion for summary judgment on the Reeds’ gross negligence claim be denied.
D. Are There Material Factual Disputes as to Assumption of the Risk?
Defendant’s final argument in favor of its summary judgment motion is that the Reeds assumed the risk of their daughter’s accident as a matter of law, thereby relieving defendant of any liability. The court addresses the first question apparent by defendant’s argument: whether assumption of the risk is even a defense to a claim of gross negligence. As legal authority for its position, defendant cites only the Restatement (Second) of Torts 496A, cmt. d (1965), and a dissenting opinion in Barger for Wares v. Cox, 372 N.W.2d 161, 170-71 (S.D. 1985) (Wuest, J., dissenting). See Defendant’s Brief, Docket No. 23 at pp. 29-30. Neither of these authorities represent binding South Dakota law.
The Reeds in their brief do not address the issue of whether assumption of the risk is a defense to a claim of gross negligence. They argue only that assumption of the risk is a quintessential issue of fact for the jury. See Docket No. 30 at pp. 13-14.
In the Holzer case discussed previously, the plaintiff signed defendant’s release of liability form which defendant called an “assumption of the risk” form. Holzer, 610 N.W.2d at 790. The court held [*22] in that case that liability releases only serve to protect defendants from claims of ordinary negligence, not from claims of gross negligence. Id. at 793. However, the title the defendant chose to give its release form is not dispositive of the question in this case.
The South Dakota Supreme Court has said that when a defendant’s actions are merely negligent, the defense of contributory negligence applies. But when the defendant’s conduct is willful and wanton, the defense of contributory negligence does not apply. Carlson v. Johnke, 57 S.D. 544, 234 N.W. 25, 27-28 (S.D. 1931), overruled on other grounds Wittstruck v. Lee, 62 S.D. 290, 252 N.W. 874, 877 (S.D. 1934) (clarifying that it did not adopt the doctrine of comparative negligence in Johnke).
In a dissenting opinion in another case, Justice Henderson stated that while assumption of the risk was a defense to ordinary negligence, the plaintiff would nonetheless have recourse for willful or wanton acts of a defendant. Johnson v. Rapid City Softball Ass’n. , 514 N.W.2d 693, 703 (S.D. 1994) (Henderson, J., dissenting). See Rantapaa v. Black Hills Chair Lift Co., 2001 SD 111, 633 N.W.2d 196, 204 (S.D. 2001) (assumption of the risk is an affirmative defense to an ordinary negligence claim).
The court has found no South Dakota case directly on point addressing whether the defense of assumption of the risk applies to grossly negligent or willful and wanton conduct. Defendant cites § 496A, comment d, of the Restatement (Second) of Torts for the proposition that the defense is [*23] available here. The section cited stands for the proposition that assumption of the risk is a defense to both ordinary negligence and to reckless conduct. The section does not address gross negligence or willful and wanton conduct. However, it is true that the South Dakota Supreme Court has, at times, used the word “reckless” interchangeably with “gross negligence” and “willful and wanton.”
If assumption of the risk is a defense to a claim of gross negligence, it is a subjective standard. Duda v. Phatty McGees, Inc., 2008 SD 115, 758 N.W.2d 754, 758 (S.D. 2008). Defendant has the burden to prove that “the particular plaintiff in fact sees, knows, understands and appreciates” the specific risk that caused the injury. Id. The defendant must prove three elements: (1) the plaintiff had actual or constructive knowledge of the risk; (2) the plaintiff appreciated its character; and (3) the plaintiff voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice. Id. “A person is deemed to have appreciated the risk if it is the type of risk that no adult of average intelligence can deny.” Id. (quoting Westover v. East River Elec. Power Coop., Inc., 488 N.W.2d 892, 901 (S.D. 1992)) (cleaned up).
The Restatement states that a plaintiff who knows generally of a danger does not necessarily assume the risk if [*24] the danger appears to be slight or negligible. See
Restatement (Second) Torts §496D, cmt. b. The Restatement also echoes what South Dakota law establishes: because the standard for assumption of the risk is a subjective one based on whether the plaintiff knows of the existence of the risk as well as understands its magnitude and unreasonable character, the question of assumption of the risk is almost always a question of fact for the jury to decide. Id.; Ray v. Downes, 1998 SD 40, 576 N.W.2d 896, 900 (S.D. 1998).
Here, the Reeds have established that neither they nor their children had ever been tubing before the day they visited defendant’s resort. See Docket No. 27-1 at p.3 (depo. p. 12). They anticipated that tubing at defendant’s resort would be safe, fun and would build family memories. See Docket No. 33-1 at p. 103. Furthermore, there is no evidence produced by defendant showing that the Reeds anticipated, understood, and accepted the risk that defendant would provide no employee at the top of the tube run to stage the tubers—contrary to defendant’s own policy and its prominent signage at the resort (i.e. follow attendant’s instructions when going down the tube run).
The defense of assumption of the risk is a subjective one. There are material issues of fact as to what the [*25] Reeds knew and appreciated in terms of the risk they and I.R. would encounter when tubing at defendant’s resort. Assuming that the defense applies at all to a claim of gross negligence, the court concludes summary judgment is inappropriate on this record.
Conclusion
Based on the foregoing facts, law and analysis, this magistrate judge respectfully recommends granting in part and denying in part defendant’s motion for summary judgment, Docket No. 21. Specifically, the court recommends defendant’s motion should be granted as to plaintiff’s claim for ordinary negligence, but recommends defendant’s motion should be denied as to plaintiff’s claim for gross negligence.
Notice To Parties
The parties have fourteen (14) days after service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).
United States Magistrate Judge
You can collect for damaged gear you rented to customers if your agreements are correct. This snowmobile outfitter recovered $27,000 for $220.11 in damages.
Posted: May 13, 2019 Filed under: Colorado, Contract, Release (pre-injury contract not to sue) | Tags: admissible, attorneys' fees, cases, collection, collector, credit card, debt collection, debt collector, demand letter, demand letters, discovery, disputed, documents, Email, engaging, entity, genuine, law firm, letters, machine, matters, missing, Mountain Law Group, nonmoving, nonmoving party, opposing, owed, parties, practice of law, preface, principal purpose, regularity, regularly, Rental, Rental Agreement, ride, signature, Snowmobile, Summary judgment, summary judgment motion 1 CommentIt helps to get that much money if the customer is a jerk and tries to get out of what they owe you. It makes the final judgment even better when one of the plaintiffs is an attorney.
Citation: Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514, 2012 WL 95208
State: Colorado; United States District Court for the District of Colorado
Plaintiff: Tracy L. Hightower-Henne, and Thomas Henne
Defendant: Leonard M. Gelman
Plaintiff Claims: Violation of the Fair Debt Collections Act
Defendant Defenses: They did not violate the act
Holding: For the Defendant
Year: 2012
Summary
The plaintiff’s in this case rented snowmobiles and brought one back damaged. The release they signed to rent the snowmobiles stated if they damaged the snowmobiles they would have to pay for the damage and any lost time the snowmobiles could not be rented (like a car rental agreement).
The plaintiffs damaged a snowmobile and agreed to pay for the damages. The Snowmobile outfitter agreed not to charge them for the lost rental income.
When the plaintiff’s got home, they denied the claim on their credit card bill. The Snowmobile outfitter sued them for the $220.11 in damages and received a judgment of $27,000.
The plaintiff then sued the attorney representing the snowmobile outfitter for violation of the federal Fair Debt Collection’s act, which is the subject of this lawsuit. The plaintiff lost that lawsuit also.
This case shows how agreements in advance to pay for damages from rented equipment are viable and can be upheld if used.
Facts
Although this is described as a debt collection case, it is a case where an outfitter can recover for the damages done to the equipment that he rented to the plaintiffs. The facts are from this case, which took them from an underlying County Court decision in Summit County Colorado.
Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely visible to any driver. At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee and charged Mr. Henne a total of only $220.11.
…one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by CBR against Mr. and Mrs. Henne in Summit County Court. This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.
This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court does not believe that the fairing just fell off.”
Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.
CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.”
At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s sig-nature on the damage estimate and the credit card slip were forgeries. The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.”
After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees pro-vision, the court awarded CBR $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.6 The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.”
As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.
Analysis: making sense of the law based on these facts.
The facts set forth in the underlying damage recovery case, are the important part. In this case, the attorney for the snowmobile outfitter was found not to have violated the federal Fair Debt Collections Act.
In awarding judgment to the defendant in this case, the judge also awarded him costs.
Defendant Leonard M. Gelman’s Motion for Summary Judgment is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.
Adding insult to injury. Sometimes it be better to quit while you are behind.
 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
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 |
 X (formerly known as Twitter) logo |
 Stimulus |
 Blue Sky |
Author: Outdoor Recreation Insurance, Risk Management and Law
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
#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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
Posted: October 5, 2014 Filed under: Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: #Cruise, #FlowRider, aboard, balancing, breached, contributed, Curise, Dangerous Condition, Duty to Warn, Electronic Release, Failure to Warn, Falling, instructor, lesson, Ltd., negligently, nonmoving, Notice, passenger, proximate, proximately, reasonable care, Release, ride, risk of injury, rope, Royal Caribbean Cruises, Royal Caribbean International, serious bodily injury, ship, Summary judgment, surface, Surfing, unreasonably, video, warn, warned, Warning Leave a commentMagazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
Mary Magazine, Plaintiff, v. Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International, Defendant.
CASE NO. 12-23431-CIV-SEITZ/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2014 U.S. Dist. LEXIS 41092
March 27, 2014, Decided
March 27, 2014, Filed
COUNSEL: [*1] For MARY MAGAZINE, Plaintiff: Kate S. Goodsell, LEAD ATTORNEY, Michael Charles Black, Cassidy & Black, P.A., Miami, FL.
For Royal Caribbean Cruises, Ltd., doing business as Royal Caribbean International, Defendant: Bryan Edward Probst, LEAD ATTORNEY, Royal Caribbean Cruises, Ltd., Miami, FL; Curtis Jay Mase, LEAD ATTORNEY, Mase, Lara, Eversole PA, Miami, FL; Jennifer Nicole Hernandez, Mase Lara Eversole, P.A., Miami, FL; Lauren E DeFabio, Mase Lara Eversole, Miami, FL.
JUDGES: PATRICIA A. SEITZ, UNITED STATES DISTRICT JUDGE.
OPINION BY: PATRICIA A. SEITZ
OPINION
ORDER ON SUMMARY JUDGMENT
THIS MATTER is before the Court on Defendant’s Motion for Final Summary Judgment [DE-41]. This action arises from a broken leg suffered during a private lesson on the FlowRider, a surfing simulator aboard one of Defendant Royal Caribbean Cruises, Ltd. (“RCL”)’s cruise ships. The essence of Plaintiff Mary Magazine’s single-count complaint is that RCL failed to follow its own procedures and thus negligently increased the risk of Magazine’s injury, principally by failing to warn her of the risk of injury on the FlowRider and by negligently instructing her in its use.
Having considered the motion, the response [DE-48] and reply [DE-52] [*2] thereto, the oral argument of counsel on March 20, 2014, and all of the evidence in the light most favorable to the Plaintiff, the Court will grant the motion as to the allegations that RCL caused an unreasonably dangerous condition under the circumstances, negligently designed and maintained the FlowRider, and negligently failed to warn of the risk of injury therefrom. It will deny the motion as to the allegation that RCL negligently instructed Magazine in the use of the FlowRider, as the Parties’ papers have not addressed Magazine’s counsel’s argument at the March 20, 2014 hearing that the instructors’ hand-off of the balancing rope contributed to the risk of Magazine’s injury.
I. Factual Background
On September 18, 2011, Plaintiff Mary Magazine, a 59-year-old attorney and Miami, Florida resident, departed on a Card Player Cruise aboard the Allure of the Seas, one of RCL’s cruise ships. The FlowRider is a surfing simulator, installed on the Allure of the Seas and other RCL vessels, that uses powerful jets of water to create a continuous, artificial wave on which participants try to surf or ride using either a bodyboard or a surfboard (or “flowboard”). Unlike ocean waves, the FlowRider’s [*3] artificial wave consists of only 1 – 3 inches of water above a “stationary, tensioned vinyl matted fabric surface” above a “rigid or fiberglass or PVC subsurface.” (“Express Assumption of Risk – Waiver & Release of Liability – FlowRider Onboard Activity Waiver – General Terms & Conditions” [DE-41-3] (“FlowRider Waiver”) at 2.)
Almost 2 weeks earlier, on September 6, 2011, Magazine had electronically registered to participate in various activities on the cruise, including ice skating, rock climbing, zip lining, and the FlowRider. As part of the registration process, Magazine checked boxes for each activity and electronically signed the FlowRider Waiver.1 She knew at the time that checking boxes meant “signing something,” which may have included warnings, but does not recall seeing any of the content of the FlowRider Waiver. She did not take additional steps at the time to research any of the activities. Once aboard the ship, she signed up for a FlowRider lesson. Because she was taking a lesson, and because she had previously participated in numerous sports without injury, she did not expect to be injured on the FlowRider. (FlowRider Waiver; Dep. of Mary Magazine [DE-41-2] (“Magazine [*4] Dep.”) 44:1 – 53:4, 69:17 – 22, 122:15 – 123:1.)
1 The parties agree that the FlowRider Waiver is unenforceable under Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846 (11th Cir. 2011).
RCL contends that it warns its passengers of the risks associated with the use of the FlowRider in several ways, all of which Magazine testifies she did not see before her accident. These include the FlowRider Waiver, a “Caution” sign in a viewing area near the FlowRider entrance, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.
On September 20, 2011, Magazine and two other passengers participated in a private FlowRider lesson, which cost $60 per person. One of the instructors asked Magazine about the knee brace she was wearing, and she responded that she’d had a knee replacement and used a brace “just for stability purposes.” Neither instructor said anything further about her knee. (Magazine Dep. 76:17 – 78:6.) There is no evidence that any instructor at this time warned Magazine of any risks associated with the FlowRider or inquired as to her understanding of those risks.
During the lesson, Magazine received [*5] verbal instructions from two RCL FlowRider instructors, though she does not remember the instructions in detail. She first watched another member of her group practice balancing on the board while receiving instruction, lose his balance, fall to the back of the FlowRider, and return to wait in line to ride again. Then, on Magazine’s turn, an instructor initially held her hand while she practiced standing on and maneuvering the flowboard. She was barefoot at this time and throughout the lesson. The instructor then let go of her hand, and Magazine tried to maintain her balance on her own until she fell and was carried by the water to the back of the FlowRider. She returned to wait in line to ride again, ultimately falling and returning to practice riding the FlowRider a total of approximately 10 to 12 times. (See Magazine Dep. 78:10 – 81:3; Dep. of 30(b)(6) representative of RCL, Alison Frazier [DE-42-1] (“RCL Dep.”) 68:3 – 69:8; Pl.’s Notice of Serving Answers to Interrog. [DE-41-1] (“Pl. Interrog.”) ¶ 8.)
After several rides, once the instructor seemed to think Magazine could balance without assistance, the instructors started using a balancing rope. One instructor would give her a [*6] rope, held by a second instructor standing near the front of the FlowRider, to hold with her right hand, while the first instructor held her left hand. Eventually the first instructor would let go of Magazine’s left hand, and the second instructor would guide her with the rope towards the front and middle of the FlowRider, where the water flow was stronger than it had been further back and on the side. It is unclear how many times Magazine practiced with the balancing rope in this way before her injury. (See Magazine Dep. 108:16 – 109:12; Pl. Interrog. ¶ 8.)
During Magazine’s last ride, she was holding the rope while the second instructor guided her to the front and middle of the FlowRider as described above. The video of her accident 2 shows that the second instructor, who had initially been holding the rope, handed the rope to the first instructor. Soon thereafter, Magazine lost her balance and fell backwards into the water. Her legs separated and she lost control of the flowboard. Her fall resulted in a spiral fracture in her femur and ultimately in permanent nerve damage, numbness, tingling, and a pronounced limp. (See Magazine Dep. 112:7 – 119:8; Pl. Interrog. ¶¶ 8, 10; Dep. of [*7] Kevin Breen [DE-44-1] (“Breen Dep.”) 80:8 – 81:23; Def’s Mot. for Final Summ. J. [DE-41] (“SJ Mot.”) at 7 ¶ 27; Pl.’s Resp. in Opp’n to Def.’s Mot. for Final Summ. J. [DE-48] (“Response”) at 8 ¶ 27.)
2 The video of Magazine’s accident was not part of the summary judgment record, but the testimony in the record refers frequently to this video. (See, e.g., Magazine Dep. 23:17 – 19.) Thus, the Court asked the Parties to provide it to the Court at the March 20, 2014 hearing.
II. Legal Standard
General maritime law controls the present action, as it involves an alleged tort committed aboard a ship in navigable waters. Therefore, the elements of negligence are: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)). In the maritime context, “a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Id. (quoting [*8] Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)).
“Summary judgment is appropriate only when, after viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party, the court nonetheless concludes that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party carries the initial burden of production, which can be met by showing that the nonmoving plaintiff has failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007) (citations omitted).
Once the moving party’s burden is met, the nonmoving party, having had the opportunity to conduct full discovery, must demonstrate that there is factual support for each element necessary to establish each claim it wishes to pursue at trial. If the nonmoving party cannot do so, then summary judgment is proper because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other [*9] facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
III. Analysis
Magazine alleges that RCL breached its duty of care in five ways: (1) by causing an “unreasonably dangerous condition” on the FlowRider; (2) by negligently maintaining and (3) negligently designing the FlowRider; (4) by failing to warn her of the risk of injury; and (5) by negligently supervising and instructing 3 her in its use.
3 Although the Complaint alleges that RCL “negligently supervised” Magazine, the Parties now characterize this claim as “negligent supervision and instruction.” (SJ Mot. at 16; Response at 25.) There is no evidence that RCL inadequately supervised or trained its instructors; rather, Magazine argues that RCL’s instructors were negligent towards her during her FlowRider lesson. As such, the claim is more accurately described as negligent instruction.
As to the claims of negligent design and negligent maintenance, Magazine’s counsel conceded at the March 20, 2014 hearing that RCL did not design the FlowRider and that there is no evidence of negligent maintenance. (See also SJ Mot. at 9 ¶¶ 34 – 37; Response at 10 ¶¶ 34 – 37.) To be liable for negligent design, a defendant must have [*10] played some role in the design. See Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (2010) (affirming summary judgment for defendant where there was no evidence that defendant had actually designed the relevant area). Therefore, summary judgment is proper as to the claims of negligent design and negligent maintenance.
Magazine’s counsel also argued at the hearing that RCL’s “caus[ing] an unreasonably dangerous condition” was an independent theory of negligence. However, there is no evidence in the record supporting the existence of any such “unreasonably dangerous condition” that is distinct from the allegations of RCL’s failure to warn, negligent design, negligent maintenance, and negligent instruction. Therefore, summary judgment is proper as to a separate claim that RCL caused an unreasonably dangerous condition under the circumstances.
The Court now turns to the remaining theories of negligence: that RCL failed to warn Magazine of the FlowRider’s risks and negligently instructed her in its use.
A. RCL’s Duty to Warn
A shipowner’s duty of reasonable care includes a duty to warn passengers of dangers of which the shipowner knows or should know but which may not be apparent to [*11] a reasonable passenger. Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013). The duty to warn does not extend to dangers that are “open and obvious.” Id. “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger. Individual subjective perceptions of the injured party are irrelevant in the determination of whether a duty to warn existed.” John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F. Supp. 2d 1345, 1351 (S.D. Fla. 2008) (citations omitted).4
4 See also Restatement (Third) of Torts: Phys. & Emot. Harm § 18, cmt. f (2010):
[T]here generally is no obligation to warn of a hazard that should be appreciated by persons whose intelligence and experience are within the normal range. When the risk involved in the defendant’s conduct is encountered by many persons, it may be foreseeable that some fraction of them will be lacking the intelligence or the experience needed to appreciate the risk. But to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important [*12] function.
RCL maintains that it reasonably warned Magazine multiple times of the risks posed by the FlowRider. (SJ Mot. at 11 – 14.) RCL points to the FlowRider waiver, a “Caution” sign, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.
“Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.” Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir. 1979), modified on other grounds, 612 F.2d 905 (5th Cir. 1980). At summary judgment, the Court must accept Magazine’s testimony that she did not see any of these warnings.
Instead, as detailed below, the dispositive issues are (1) proximate causation and (2) the lack of duty to warn of open and obvious dangers. RCL has two arguments about these issues. First, any alleged failure to warn was not the proximate cause of Magazine’s injury because she “testified that she would not have heeded warnings anyway.” (SJ Mot. at 14.) Second, “the risk of falling and suffering an injury on the FlowRider is surely open and obvious under [*13] the facts of this case.” (Id. at 15 – 16.)
1. Applicable Law
In any negligence claim, the plaintiff must show that the defendant’s breach of duty actually and proximately caused the plaintiff’s injury. Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1566 (11th Cir. 1985) (“[F]ault in the abstract is not sufficient. To produce liability, the acts of negligence . . . must be a contributory and proximate cause of the accident.”). This requires that the defendant’s breach “be a substantial factor in bringing about the harm.” Chavez v. Noble Drilling Corp., 567 F.2d 287, 289 (5th Cir. 1978). Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.
In addition, as noted above, a defendant has no duty to warn a plaintiff about dangers that are open and obvious.5 Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) [*14] that actually caused the plaintiff’s injury. See, e.g., Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (plaintiffs had adequately stated claim that cruise line breached its duty to warn plaintiffs about the high prevalence of gang-related violence in Coki Beach that caused one plaintiff’s death). As neither party identifies the relevant risk with adequate specificity in their written or oral arguments, the Court must glean the types of potentially relevant risks from the Parties’ papers and the record. For the reasons stated below, the Court finds no evidentiary support for a reasonable jury to conclude that any risk exists in this case that meets all four criteria essential to a negligent-failure-to-warn claim.
5 The lack of a duty to warn of open and obvious dangers is related to the requirement of proximate causation because “warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety,” particularly as such warnings “may be ignored by users and consumers and can diminish the significance of warnings about non-obvious, not-generally-known risks.” Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317, 1323 (M.D. Fla. 2003) [*15] (citation omitted).
2. Identifying the Relevant Risk
a. Risk of Falling on the FlowRider
The relevant risk is not simply that one might fall on the FlowRider, as RCL appears to argue at times. (See, e.g., SJ Mot. at 16 (“Plaintiff’s expert and Carnival’s [sic] expert both agreed that falling on the FlowRider is an obvious risk.”).) A reasonable jury could conclude that a first-time participant is virtually guaranteed to fall on the FlowRider.6 However, a fall that results in a spiral fracture and permanent nerve damage is not in the same category as the 10 – 12 earlier falls that Magazine described as “actually kind of fun.” (Magazine Dep. 107:13.) In fact, RCL’s own expert stated that Magazine’s injury resulted from “nuances of how she fell on this occasion, and not the fact that she just fell.” (Expert Report of K. Breen [DE-43-2] at 7.)
6 In fact, RCL’s website advertises the opportunity to “cheer on friends from stadium seating with prime wipeout views” of the FlowRider, suggesting that RCL considers falling to be part of its appeal. Things to do onboard, Royal Caribbean International, http://www.royalcaribbean.com/findacruise/experiencetypes/category.do?pagename=onboard_cat_things_to_do [*16] (last visited Mar. 24, 2014).
b. Risk of Serious Bodily Injury or Death
Instead, the relevant risk is the general risk of serious bodily injury or death on the FlowRider. In the circumstances of this case, this is the same risk as what RCL characterizes as “the risk of falling and suffering an injury on the FlowRider” (SJ Mot. at 15 (emphasis added)) and what Magazine describes as “that there was a chance that she would get hurt while participating in the FlowRider” (Response at 9 ¶ 30). Having identified the relevant risk, the Court finds that summary judgment is proper here for two reasons.
First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider (Magazine Dep. 111:22 – 112:2), and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.
Second, the general risk of injury on the FlowRider [*17] is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway. Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious. See Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352 (S.D. Fla. 2013) (risk of heart attack from uneven terrain on a hike is open and obvious, but risk from invisible volcanic gasses might not be); Balachander v. NCL Ltd., 800 F. Supp. 2d 1196 (S.D. Fla. 2011) (risk of drowning while swimming in the ocean is open and obvious); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398, 2012 U.S. Dist. LEXIS 86052, 2012 WL 2367853 (S.D. Fla. June 21, 2012) (risk of slipping while exiting a swimming pool is open and obvious); Young v. Carnival Corp., No. 09-21949, 2011 U.S. Dist. LEXIS 10899, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011) (risk of tripping while hiking is open and obvious).
Although Magazine argues otherwise, there is no evidence that the Court can extract from the [*18] record supporting the existence of any other risk that is not open and obvious and that could have contributed to her injury. The Court will now address each of the three risks suggested in Magazine’s testimony and arguments.
c. Surface of the FlowRider
Magazine argues that she probably would not have participated in the FlowRider if she had known “that the floor of the FlowRider is a metal surface covered with foam and was as hard as it was.” (Response at 24.) She also testified that she had expected prior to her injury that the foam padding over the base of the FlowRider would be as thick as the padding at the back of the FlowRider (Magazine Dep. 102:6 – 103:3), in contrast to her understanding at the time of testimony that “[u]nderneath the surface of the FlowRider there’s some kind of metal.” (Magazine Dep. 88:7 – 9.)
If the FlowRider’s surface were somehow more dangerous than a reasonable person might expect, that might justify requiring a warning. See, e.g., Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1223 (S.D. Fla. 2013) (plaintiff had adequately stated claim that defendant breached its duty to warn of the slippery condition of its walkway). However, there is no evidence [*19] in the record, other than Magazine’s speculation, suggesting that the subsurface of the FlowRider is made of metal or that there is any less padding than would have been apparent to Magazine from her earlier 10 – 12 rides or to any other FlowRider participant who had the opportunity to walk barefoot on the FlowRider’s surface.
d. Particular Medical Conditions
Magazine testified in her deposition that the FlowRider Waiver was inadequate partially because “[t]here’s nothing . . . that I saw, that says if you have any kind of medical issues, that you should not go on this ride.” (Magazine Dep. 90:6 – 8; see also Response at 8 ¶ 29.) If the FlowRider posed a danger to people with particular medical conditions in ways that a reasonable person with such medical conditions might not expect, that too might justify requiring a warning. However, Magazine expressly states that her knee condition did not cause her injury (Magazine Dep. 126:5 – 127:17), and there is no evidence in the record suggesting that Magazine had any other such medical condition that contributed to her injury. Therefore, any failure to warn Magazine about a risk to those with particular medical conditions did not proximately [*20] cause Magazine’s injury.
e. Previous Injuries on the FlowRider
Magazine also appears to argue that RCL had a duty to inform her that people had previously been injured on the FlowRider. She states in her interrogatory responses that “if I had been advised of all the serious injuries that other RCL guests had experienced I would not have even taken a lesson.” (Pl. Interrog. ¶ 9.) In her deposition, Magazine described the FlowRider Waiver as inadequate partially because “they don’t tell you how many people have been injured on this thing.” (Magazine Dep. 90:2 – 13; see also Response at 8 ¶ 29.) Magazine now emphasizes that “at least one person died using the FlowRider and some 147 more were severely injured using it in the short time between the maiden voyages of the Allure of the Seas and Oasis of the Seas and Plaintiff’s accident” whereas “[n]o guest has ever died using any other onboard activities.” (Response at 27 – 28.)
This argument fails because it does not point to the existence of a non-open-and-obvious risk that could have proximately caused Magazine’s injury. It demonstrates that the FlowRider posed a risk of serious bodily injury or death and that RCL knew of this risk.7 However, [*21] RCL is not contesting these points; in fact, RCL’s primary argument is that RCL adequately warned Magazine of the risk of serious bodily injury or death. Magazine has pointed to no other authority, either in law or in customary practice, imposing a duty to inform passengers of specific numbers of injuries. (See Dep. of Daniel Connaughton, Ed.D. [DE-43-3] (“Connaughton Dep.”) 107:5 – 15.)
7 The list of injuries includes some fractures but also many sprained ankles and toe contusions, which are difficult to characterize as “severe” or as substantially similar to Magazine’s injury. (See Def.’s First. Suppl. Resp. to Pl.’s Req. for Produc. [DE-48-5]; Def’s Notice of Serving First Suppl. Resp. to Pl.’s Interrog. [DE-48-6].)
3. Failure of Proof on Essential Element of Claim
Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference. The only risk that materialized was the general risk that one could fall and be injured on the FlowRider, which was so open and obvious that Magazine admits that a warning referring only to [*22] this general risk would not have mattered. Magazine has not pointed to any other risk about which there was any basis to expect a warning. As such, there is no genuine issue of material fact as to the claim that RCL breached its duty to warn.
B. Issues of Fact As To Negligent Instruction
RCL moves for summary judgment on Magazine’s negligent instruction claim on the grounds that (1) Magazine “avers that she received thorough instruction” from the instructors; (2) the “instructor’s use of a balancing rope to aid the FlowRider passengers was reasonable under the circumstances;” and (3) “there is no record evidence that RCL was on notice that the use of the balance rope was improper.” (SJ Mot. at 16 – 18.)
Magazine responds that (1) a reasonable instructor should ensure that participants understand the relevant risks, such as by requiring viewing of the safety video and providing an explicit opportunity for questions; (2) the use of a balancing rope is “not referenced anywhere as an acceptable balancing or teaching method” in the relevant FlowRider manuals (Response at 25); and (3) RCL failed to provide “reasonable instructional progression including the use of a bodyboard prior to stand-up [*23] riding, as suggested by Wave Loch/FlowRider.” (Report of Daniel Connaughton, Ed.D. [DE-40-1] at 7.) Additionally, at oral argument, Magazine’s counsel pointed to a few seconds of the accident video to support the argument that the hand-off of the balancing rope from one instructor to another contributed to Magazine’s loss of balance and subsequent injury.
The Court has already addressed RCL’s alleged failure to warn. Reasonable care by an instructor may very well include ensuring that participants understand the relevant risks. However, Magazine’s claim on this ground fails due to a lack of proximate causation and because the relevant risk was open and obvious.
As Magazine’s expert concedes, there is no evidence in the record that any failure by RCL to provide a bodyboard contributed to the risk of Magazine’s injury. (Connaughton Dep. 52:7 – 56:3.) Therefore, this argument fails as well.
However, because the Parties’ briefing did not address Magazine’s counsel’s argument at the March 20, 2014 hearing regarding the transfer of the balancing rope, the Court cannot conclude at this time, as a matter of law, that RCL’s instructors necessarily exercised reasonable care in their handling of [*24] the balancing rope, and that such breach did not heighten the risk of Magazine’s injury.8 While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.9
8 There is no evidence undercutting RCL’s contention that the instructors had received all of RCL’s training to become a FlowRider instructor. (RCL Dep. 67:14 – 68:19; SJ Mot. at 6 ¶ 19; Response at 6 ¶ 19.) This may preclude a finding that their use of the balancing rope was inherently improper. (Connaughton Dep. 25:4 – 26:15.) However, this does not address whether the instructors exercised reasonable care in handling the balancing rope.
9 Federal courts exercising admiralty jurisdiction “may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 831, 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996). State law reveals a range of approaches. Compare, [*25] e.g., Alber ex rel. Albert v. Ober Gatlinburg, Inc., No. 3:02-CV-277, 2006 U.S. Dist. LEXIS 100150, 2006 WL 208580, at *5, *8 (E.D. Tenn. Jan. 25, 2006) (denying summary judgment on the grounds that (1) reasonable care meant not exposing skiers to risks that “were not an inherent risk of skiing” and (2) genuine issues of material fact remained as to “the adequacy of the ski lesson . . . and whether that lack of instruction was a proximate cause of [plaintiff’s] fall and injuries.”) and Derricotte v. United Skates of Am., 350 N.J. Super. 227, 794 A.2d 867, 871 (N.J. Super. Ct. App. Div. 2002) (“[P]laintiff’s fall as a result of the rink’s alleged negligence in teaching her how to skate was not an ‘inherent,’ ‘obvious’ or ‘necessary’ risk of skating.”) with Fredrickson v. Mackey, 196 Kan. 542, 413 P.2d 86, 89 (Kan. 1966) (offering horse-riding lessons does not turn a defendant into an “insurer against all possibility of injury or accident”).
Magazine testified that the instructor holding the rope pulled her closer to the front and the middle of the FlowRider, where the water flow was considerably stronger, before she was ready, resulting in her being unable to control the flowboard as she fell. (Magazine Dep. 116:10 – 17, 118:7 – 119:8.) Furthermore, [*26] a jury could view the video of Magazine’s accident as corroborating her testimony and as showing that the hand-off of the balancing rope contributed to the risk of Magazine’s injury.
The Parties’ papers did not address Magazine’s claim as framed in this fashion. Given this framing, these issues remain:
(1) Did the instructors’ handling of the balancing rope contribute to the risk of Magazine’s particular injury?
(2) Was the resulting risk greater than the inherent risk of injury on the FlowRider?
RCL’s response that “the rope helped to maintain Plaintiff’s balance before she fell” (SJ Mot. at 7 ¶ 24) does not adequately address these issues. The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” (SJ Mot. at 18) is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions. See Long v. Celebrity Cruises, Inc., No. 12-22807, 2013 U.S. Dist. LEXIS 164035, 2013 WL 6043918, at *3 (S.D. Fla. Aug. 1, 2013) [*27] (collecting cases).
RCL also argues that Magazine’s testimony is speculative and therefore insufficient to defeat summary judgment. However, the direct testimony of an accident victim about her own accident is not “speculation.” The two cases that RCL cites are not applicable. (Def.’s Reply in Supp. of Mot. for Final Summ. J. at 10.) The first case, Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827 (11th Cir. 2013), addresses the procedurally distinct burden-shifting framework of employment discrimination. The second case, Doe v. NCL (Bahamas) Ltd., No. 11-22230, 2012 U.S. Dist. LEXIS 162654, 2012 WL 5512347 (S.D. Fla. Nov. 14, 2012), involves a plaintiff’s initial speculation that contradicted that same plaintiff’s later representations to the court, rather than a plaintiff’s testimony on a subject about which she has personal knowledge.10
10 Magazine’s testimony about her accident thus differs from her speculation as to the composition of the FlowRider’s subsurface.
Because the Parties have not focused on the reframed issues, the Court cannot conclude at this time that there are no genuine issues of material fact as to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable [*28] care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury. The Court is mindful that accidents, sadly, do happen, and a cruise ship operator “is not an insurer of its passengers’ safety. There thus must be some failure to exercise due care before liability may be imposed.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) (citation omitted). If Magazine fails to establish the necessary evidentiary support for this claim at trial, the Court will entertain a motion for a directed verdict after she rests her case.
IV. Conclusion
Accordingly, it is
ORDERED that
1. Defendant’s Motion for Final Summary Judgment [DE-41] is GRANTED IN PART AND DENIED IN PART as follows:
a) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “caused an unreasonably dangerous condition under the circumstances.”
b) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “negligently maintained the Flowrider in question.”
c) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that “the Flowrider in which the Plaintiff fell was negligently designed.”
d) GRANTED WITH PREJUDICE with respect to Magazine’s allegation [*29] that RCL “failed to warn the Plaintiff and fellow passengers of a dangerous and hazardous condition about which it knew or should have known.”
e) DENIED with respect to Magazine’s reframed allegation that RCL negligently instructed her in the use of the FlowRider.
2. The deadline to file the Joint Pretrial Stipulation, proposed jury instructions and verdict form, and Motions in Limine and Responses [see DE-8 at 2] is EXTENDED to April 10, 2014.
3. The Pretrial Conference is RESCHEDULED to 1:30 pm on April 22, 2014.
4. Defendant’s Motion in Limine to Admit Evidence of Defendant’s Warnings Regarding the FlowRider [DE-29] is DENIED as failing to comply with the requirements set in this Court’s March 12, 2013 Order [DE-8 at 2].
DONE and ORDERED in Miami, Florida, this 27th day of March, 2014.
/s/ Patricia A. Seitz
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE
Recreation Law 