Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

97 N.Y.S.3d 825

63 Misc.3d 843

Richard E. Scotti and Joseph Russo, Plaintiffs,

v.

Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, Defendants.

No. 2019-29098

522905/17

Supreme Court of New York, Kings

March 29, 2019

[97 N.Y.S.3d 828] Plaintiffs were represented by Brandon Michael Cruz THE BONGIORNO LAW FIRM, PLLC. Address

Defendants were represented by Joshua Cash WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Address

Opinion

Debra Silber, J.

Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated move for an order, pursuant to CPLR 7501 and 7503(a), to compel arbitration and to stay this action pending resolution of the arbitration proceeding. For the reasons which follow, the motion is denied.

Background and Procedural History

This personal injury action stems from an accident which occurred on July 23, 2016, when the plaintiffs Richard E. Scotti (Scotti) and Joseph Russo (Russo) (collectively, plaintiffs) participated in the “Tough Mudder,” a physically challenging obstacle course event (hereinafter, the TM Event), which took place at 1303 Round Swamp Road, Old Bethpage, New York. Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated (collectively, “Tough Mudder”) are the business entities that organized the TM Event. Plaintiffs commenced the within action on or about November 17, 2017 against Tough Mudder alleging that they each sustained injuries as a result of defendants’ negligent operation of an activity at the event, referred to as the “salmon ladder.” Tough Mudder joined issue on or about December 20, 2017, with the service of a Verified Answer. In their answer, Tough Mudder denied all material allegations and asserted various affirmative defenses, including that the plaintiffs’ action is barred by the participation/registration agreement, which included an arbitration clause.

Tough Mudder now moves, pursuant to CPLR 7501 and 7503, to compel arbitration, arguing that the plaintiffs are barred from pursuing the instant action in this Court because they each waived the right to sue by virtue of agreeing to arbitrate any “disputes, controversies, or claims” arising out of their participation in the TM event. Tough Mudder claims that the plaintiffs each entered into an agreement to arbitrate all claims related to their participation in the TM Event when they completed an on-line internet registration form. In support of this contention, Tough Mudder has submitted the sworn affidavit of Jenna Best, the Manager of Customer Relations for Tough Mudder Incorporated (Affirmation of Joshua Cash, Exhibit C). Best avers that she is fully familiar with the TM Event on-line registration process as it existed in 2016 when the plaintiffs registered for the TM Event at issue.[1] Tough Mudder has submitted copies of the on-line registration forms that the plaintiffs allegedly completed for the TM Event (Cash Affirmation, Exhibit D). Best states that, during the on-line registration process, the plaintiffs were required to scroll down to a section containing the “Participant Waiver and Course Rules” (hereinafter, PWCR), a document version of which has been submitted herein (Cash Affirmation, Exhibit F). She contends that the full text of the PWCR was contained in a box on the screen, which could be read by scrolling down in the text box. Best contends that the initial visible content of the scrollable box, which preceded the full PWCR document, which could be read in its entirety by scrolling down, read as follows:

“Participant Waiver: Tough Mudder Incorporated

ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS. (Cash Affirmation, Exhibit E).

Best claims the PWCR contained the following “Mediation and Arbitration” provision:

Mediation and Arbitration: In the event of a legal issue, I agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation, I agree that all disputes, controversies, or claims arising out of my participation in the TM event shall be submitted to binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect. The costs of such action shall be shared equally by the parties.

I further acknowledge and agree that any question, issue or dispute as to the arbitrability of any dispute, controversy, or claim arising out of my participation in the TM event, will be submitted to an arbitrator in accordance with the applicable rules of the American Arbitration Association then in effect. The Arbitration Rules of the American Arbitration Association are available on-line at http://www.adr.org (Cash Affirmation, Exhibit F).

Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM Event. According to Best, the internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR (Cash Affirmation, Exhibit D at ¶ 5). She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM Event (id at ¶ 6). Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the on-line waiver, which included the arbitration clause and, therefore, are barred from pursuing the instant action. In opposition, plaintiffs argue that the arbitration provision at issue is unenforceable because Tough Mudder has failed to establish that they actually agreed to it. In this regard, plaintiffs point out that the web page where the PWCR was located contained a text box that did not show the entire document. In order to read the full PWCR, including the arbitration provision, plaintiffs contend it would have been necessary to scroll down through many screens of text using the arrows on the right-hand side of the text box. The PWCR fills seven single-spaced pages of text (Exhibit F to Cash Affirmation). Plaintiffs further argue that Tough Mudder has failed to proffer any evidence that either plaintiff actually signed/checked the consent box, or any evidence identifying the computers or electronic devices from which their respective registrations were completed.

Plaintiffs additionally argue that the arbitration clause in the PWCR is unenforceable because it contains a conflicting provision regarding disputes. Plaintiffs point out that the PWCR contains a clause entitled “Venue and Jurisdiction” located several paragraphs before the “Mediation and Arbitration” clause, which states [Exhibit F, Page 3]:

I understand that if legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM Event is held shall apply.

Plaintiffs argue that this provision clearly conflicts with the arbitration clause located many lines of type below it, thereby rendering it void and unenforceable.

Finally, plaintiffs argue that the entire PWCR agreement, including the purported arbitration provision, is unenforceable because the “Waiver of Liability for Ordinary Negligence” clause (on page three of the PWCR as Exhibit F) violates General Obligations Law (GOL) § 5-326, which prohibits contracts between the owner or operator of any “place of amusement or recreation” from exempting such owner or operator from “liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment.” In this regard, plaintiffs contend that Tough Mudder’s operation of the TM Event obstacle course was clearly operated as “a place of amusement or recreation” within the meaning of GOL § 5-326. Since the plaintiffs paid a fee to use the obstacle course and were injured while engaged in that activity, they argue that GOL § 5-326 renders the entire waiver of liability clause, and all remaining provisions of the PWCR, including the arbitration clause, void and unenforceable.

In reply, Tough Mudder points out that the plaintiffs do not dispute that they each did in fact register for the TM Event. In addition, Tough Mudder argues that GOL § 5-326 is not applicable herein and, therefore, does not invalidate the waiver or any other PWCR provision. In this regard, Tough Mudder maintains that the TM Event is distinguishable from the “recreational” activities intended to be covered under the statute, such as horseback riding, auto racing, cycling and skiing, which Tough Mudder characterizes as being “relaxed and undemanding” activities, which “do not necessitate any research or physical preparation.” Tough Mudder argues that the TM Event is distinguishable from the foregoing activities in that it is “a rigorous and grueling athletic competition that requires proper training and dedication” (Cash Reply Affirmation, at ¶ 8). Tough Mudder further argues that TM Events are “unique to their participants,” and pose risks and challenges exclusive to obstacle courses, thereby rendering such events completely distinct from the recreational activities engaged in by the “general public” as contemplated by GOL § 5-326.

In addition, Tough Mudder points out that the PWCR contains a “Severability” provision which states, in relevant part, as follows:

“I understand and agree that this … Waiver of Liability … is intended to be as broad and inclusive as is permitted by the state in which the TM Event is held and that if any provision shall be found to be … void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions.”

[97 N.Y.S.3d 831] In light of the foregoing provision, Tough Mudder argues that, in the event a clause is deemed unenforceable, it does not invalidate any of the remaining provisions of the PWCR, including the arbitration clause at issue.

Tough Mudder also argues that the “Venue and Jurisdiction” clause is not contradicted by the “Mediation and Arbitration” clause, as the latter clause only mandates arbitration regarding disputes “arising out of [one’s] participation in the TM event …” Therefore, Tough Mudder contends that there are clearly certain circumstances when a state or federal trial court would be the appropriate venue for claims that do not arise out of one’s participation in the TM Event. However, since plaintiffs’ claims do arise out of their participation, Tough Mudder maintains that arbitration of this matter is required.

Discussion

It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” (God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 N.Y.3d 371, 812 N.Y.S.2d 435, 845 N.E.2d 1265 [2006] [internal quotation marks omitted]; seeMatter of Robert Stigwood Org. [Atlantic Recording Corp.], 83 A.D.2d 123, 126, 443 N.Y.S.2d 726 [1981] ). When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement (seeHarriman Group v. Napolitano, 213 A.D.2d 159, 162, 623 N.Y.S.2d 224 [1995] ). The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists (seeSeneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d 211, 212, 741 N.Y.S.2d 690 [2002]; Matter of Allstate Ins. Co. v. Roseboro, 247 A.D.2d 379, 380, 667 N.Y.S.2d 914 [1998] ). The court must draw all inferences in favor of the non-moving party. (Nicosia v. Amazon.com Inc., 834 F.3d 220, 229 [2d Cir. 2016] ).

“The creation of online contracts ‘has not fundamentally changed the principles of contract’ ” (Resorb Networks, Inc. v. YouNow.com, 51 Misc.3d 975, 981, 30 N.Y.S.3d 506 [Sup.Ct. N.Y. County 2016] quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 [2d Cir. 2004] ). The question of whether there is agreement to accept the terms of an on-line contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website (seeSchnabel v. Trilegiant Corp., 697 F.3d 110, 120 [2d Cir. 2012] ). Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user (id. at 120; see Fteja v. Facebook, Inc., 841 F.Supp.2d 829, 833, 835 [S.D.N.Y. 2012]; Starke v. Gilt Groupe, Inc., 2014 WL 1652225, *2, *3, 2014 U.S. Dist. LEXIS 58006, *6-7 [S.D.N.Y. 2014]; Jerez v. JD Closeouts, LLC, 36 Misc.3d 161, 168, 943 N.Y.S.2d 392 [Nassau Dist. Ct. 2012] ). In Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002), the court emphasized that “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility” (id. at 35; seeStarke v. Squaretrade, Inc., No. 16-CV-7036 [NGG], 2017 WL 3328236, at *5 [E.D.N.Y. Aug. 3, 2017], affd 913 F.3d 279 [2d Cir. 2019] ).

In Berkson v. Gogo LLC, 97 F.Supp.3d 359, 394-403 (E.D.N.Y. 2015), the four “general types of online consumer contracts

are identified as (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” As explained by Judge Weinstein in Berkson:

Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click “I agree,” but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate “I agree” button in order to assent to the terms and conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site’s services…. (Id. at 394-95). (seeApplebaum v. Lyft, Inc., 263 F.Supp.3d 454, 465 [S.D.N.Y. 2017] [applying New York law and denying motion to compel arbitration where notice of contract terms was insufficient to bind plaintiff] ).

Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click “I agree” without scrolling through the agreement, but there is nothing in the record to support this claim.[2]

A party may be bound to a click wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the … agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.” (Serrano v. Cablevision Sys. Corp., 863 F.Supp.2d 157, 164 [E.D.N.Y. 2012]; see alsoWhitt v. Prosper Funding LLC, 15— CV— 136, 2015 WL 4254062, at *4 [S.D.N.Y. July 14, 2015]; Kai Peng v. Uber Techs., Inc., 237 F.Supp.3d 36, 47-48 [E.D.N.Y. 2017]; Berkson, 97 F.Supp.3d at 397). However, as stated by Judge Koeltl in Applebaum v. Lyft, Inc., 263 F.Supp.3d at 466,

“[a] court cannot presume that a person who clicks on a box that appears on a … screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.) … The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous…. Clarity and conspicuousness of arbitration terms are important in securing informed assent.” (internal citations omitted)

Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation [97 N.Y.S.3d 833] of assent is unambiguous as a matter of law (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d 17, 28 [2d Cir. 2002] ). Therefore, issue herein is whether Tough Mudder’s website registration screen put a reasonably prudent user on inquiry notice of the relevant terms of the PWCR, particularly the arbitration clause at issue (seeApplebaum, 263 F.Supp.3d at 465). Insofar as it turns on the reasonableness of notice, the enforceability of a web-based agreement is clearly a fact-intensive inquiry (id. ; seeMeyer v. Uber Techs., Inc., 868 F.3d 66, 76 [2d Cir. 2017], citing Schnabel v. Trilegiant Corp., 697 F.3d 110, 124 [2d Cir. 2012] ).

Here, plaintiffs did not have actual notice of the arbitration provision at issue in this case. However, plaintiffs can still be bound by the contractual terms if there is inquiry notice of the terms and plaintiffs “assent[ed] to [the terms] through the conduct that a reasonable person would understand to constitute assent” (Plazza v. Airbnb, Inc., 289 F.Supp.3d 537, 548 [S.D.N.Y. 2018]; see alsoNicosia, 834 F.3d at 233). A person is on inquiry notice if a “reasonably prudent offeree would be on notice of the terms at issue” (Schnabel, 697 F.3d at 120 [” ‘[I]nquiry notice’ is ‘actual notice of circumstances sufficient to put a prudent man upon inquiry’ “] quoting Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 27 n.14 [2d Cir. 2002] ).

As cited in a recent decision, Corwin v. NYC Bike Share, LLC, 238 F.Supp.3d 475 (S.D.N.Y. 2017) “a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided ‘reasonably conspicuous notice that [users] are about to bind themselves to contract terms’ ” (Specht v. Netscape Communications Corp., 306 F.3d 17, 32 [2d Cir. 2002] [Sotomayor, J.] ). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways (Meyer v. Kalanick, 200 F.Supp.3d 408, 420 [S.D.N.Y. 2016] ). In Meyer, a putative class action claiming price-fixing, the district court found that adequate notice was not given to plaintiff of mandatory arbitration when he registered to use Uber. The screen had a hyperlink to the agreement, but plaintiff did not need to click on it to register as a user. Then, after clicking on it, you needed to click further to read the Terms of Service and the arbitration provision was at the bottom of page seven. This was determined to be a “browsewrap” agreement. The Second Circuit, on appeal,[3] determined that the issue was whether the plaintiff was on inquiry notice of the arbitration provision by virtue of the hyperlink on the screen, under California Law, and determined that adequate notice was given. The panel reversed the district court, finding the motion to compel arbitration should have been granted.

The court further notes that on-line agreements may be revised from time to time, so not only must the court determine whether the party seeking to enforce such an agreement has provided the version seen by the other party at the time the contract was made, but whether the court in any seemingly on point case cited actually rendered its decision based on the same version of the agreement (seePlazza v. Airbnb, 289 F.Supp.3d 537 [S.D.N.Y. 2018] [archived computer code for 2009 sign-up screen provided to court, along with screen shots of Terms of Service] ).

In Berkson, supra, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide a court’s inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement (Berkson, 97 F.Supp.3d at 401 [citingNguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] ). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through a hyperlink. Third terms should not be enforced when they are “buried at the bottom of a webpage or tucked away in obscure corners.” Special attention should be paid to whether the site design brings the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. “When contractual terms as significant as … the right to sue in court are accessible only via a small and distant hyperlink … with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent” (Meyer v. Kalanick, 200 F.Supp.3d at 421-22 [internal quotation marks and citation omitted] ). A broad exculpatory clause waiving liability for negligence would also certainly qualify as a material term and one that alters a contracting party’s commonly-understood rights.

Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM Event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its on-line registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period. In this regard, the court finds that the affidavit by Ms. Best holds little evidentiary value, as she does not set forth the basis of her personal knowledge of Tough Mudder’s on-line registration process at the time the plaintiffs registered, or of her familiarity with the applicable computer generated documents (seeGogos v. Modell’s Sporting Goods, Inc., 87 A.D.3d 248, 253-254, 926 N.Y.S.2d 53 [2011] ). Additionally, absent from her affidavit is any indication that she was even employed by Tough Mudder at the relevant time period.

In addition, the court notes that the purported copies of the plaintiffs’ respective on-line registration forms (screen shots) submitted by Tough Mudder (Exhibit D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screen shots depicting its on-line registration process. In addition, the full text of the PWCR, as provided by Tough Mudder, is not a screen shot but a black and white document, consisting of seven pages of single-spaced language, all in the same font and size, with no underlined, hyperlinked or bolded terms. In order to view the “Mediation and Arbitration” clause, the plaintiffs, by using the arrows inside the text box, needed to scroll down significantly beyond what is initially visible, to page four of the seven-page single-spaced PWCR document. The court additionally notes that, as with the entire document, the arbitration provision is neither underlined, bolded nor hyperlinked. Further, since this court has only been provided with a black and white document, not screen shots, it is unable to discern how the subject arbitration clause actually appeared to the user. Indeed, “[i]n the context of web-based contracts, [courts] look to the design and content of the relevant interface to determine if the contract terms were presented to the offeree in a way that would put her [or him] on inquiry notice of such terms” (Starke v. Squaretrade, Inc., 913 F.3d 279, 289-90 [2d Cir. 2019] citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] and Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 23 [2d Cir. 2002] [where court refused to enforce terms of use that “would have become visible to plaintiffs only if they had scrolled to the next screen”] ). Here, Tough Mudder’s submissions with respect to the “design and content” of its website and the relevant terms of the PWCR, especially the arbitration clause, are woefully inadequate.

The court further notes that the initially visible portion of the on-line text box containing the scrollable PWCR has an all-caps header stating: “ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.” However, while this header specifically draws the user’s attention to certain specified provisions (i.e., Assumption of Risk, Waiver of Liability and Indemnity) which appear at the beginning of the document (on pages one and three), it makes no reference to the arbitration provision, which appears on page four of the seven-page PWCR document.

Additionally, the court notes that the “Venue and Jurisdiction” clause, which appears on page three of the PWCR states that if “legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction….” This provision clearly conflicts with the arbitration clause at issue, which mandates that all claims “arising out of [one’s] participation in the TM Event shall be submitted to binding arbitration….” Given that the plaintiffs would have viewed (in the scrollable text box) the “Venue and Jurisdiction” provision first, the court finds it highly unlikely that they would have been placed on inquiry notice of the arbitration provision, which appeared on a subsequent page in the agreement. As noted above, the party seeking to compel arbitration bears the burden of establishing that an agreement to arbitrate exists (see Seneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d at 212, 741 N.Y.S.2d 690), which Tough Mudder has failed to do. Under the circumstances presented here, the court finds that the arbitration provision was not sufficiently conspicuous to place the plaintiffs on inquiry or constructive notice and, therefore, is not enforceable (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d at 32; Applebaum, 263 F.Supp.3d at 465). Further, due to the conflicting provisions regarding litigation and arbitration, the arbitration provision is void due to ambiguity. Accordingly, Tough Mudder’s motion to stay the action and compel arbitration is denied.

General Obligations Law § 5-326

As to plaintiffs’ argument that the waiver and release provision set forth in the PWCR [Exhibit F Page 3] is invalid pursuant to GOL § 5-326, the court agrees. That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a “place of amusement or recreation” for which a fee is paid (GOL § 5-326; seeRogowicki v. Troser Mgt., 212 A.D.2d 1035, 623 N.Y.S.2d 47 [1995]; Blanc v. Windham Mtn. Club, 115 Misc.2d 404, 454 N.Y.S.2d 383 [1982], affd 92 A.D.2d 529, 459 N.Y.S.2d 447 [1983] ). The terms of this statute apply to the plaintiffs herein, who paid a fee to use Tough Mudder’s obstacle course, which, contrary to Tough Mudder’s assertion, is a place of recreation (seeLeftow v. Kutsher’s Country Club Corp., 270 A.D.2d 233, 234, 705 N.Y.S.2d 380 [2000] ). Indeed, the nature of the TM Event as described by Tough Mudder — a rigorous, athletic competition requiring proper training — is comparable to the other activities, such as horseback riding, auto racing, cycling and skiing, which have been held to be covered by GOL § 5-326. Furthermore, Tough Mudder’s assertion that, unlike the TM Event, such activities are “relaxed and undemanding” and “do not necessitate any research or physical preparation” is an inaccurate and absurd distinction. Thus, the PWCR’s waiver provision, waiving defendants’ liability for “ordinary negligence” violates GOL § 5-236 and is therefore void (seeGarnett v. Strike Holdings LLC, 64 A.D.3d 419, 882 N.Y.S.2d 115 [2009] [applying § 5— 326 where plaintiff paid a fee to use the recreational facility]; Alibey v. Tough Mudder Inc., 2018 WL 5298473, at *2 [Sup.Ct., Kings County, Oct. 24, 2018]; Hansen v. Tough Mudder, Inc., [Sup Ct Kings Co. 2018, Ind. 515072/15] ).

However, as Tough Mudder correctly argues, the unenforceable provisions of the PWCR do not nullify the entire agreement. Where an agreement consists partially of an unlawful objective, “the court may sever the illegal aspect and enforce the legal one, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.” (Mark Hotel LLC v. Madison Seventy-Seventh LLC, 61 A.D.3d 140, 143, 872 N.Y.S.2d 111 [2009] ). “[W]hether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being.” (Matter of Wilson’s Estate, 50 N.Y.2d 59, 65, 427 N.Y.S.2d 977, 405 N.E.2d 220 [1980] ).

Here, the waiver of liability provision in the PWCR releasing Tough Mudder from liability, as well as the arbitration clause, are severable from the remainder of the PWCR agreement on the ground that the unenforceable provisions are incidental to the legal aspects and not the main objective of the agreement. Further, the severability provision in the PWCR reflects the intent of the parties that the legal provisions of the agreement be severed from any provisions determined to be void and unenforceable.

Conclusion

For the reasons state above, Tough Mudder’s motion to compel arbitration and stay the action is denied.

The parties are directed to appear on May 1, 2019 in the Intake Part for a Preliminary Conference.

The foregoing constitutes the decision and order of the court.

Notes:

[1] It seems defendants conduct similar events all over the United States. There are two other actions pending in Kings County Supreme Court against defendants, and in both actions, defendants motions to compel arbitration were denied, albeit on different grounds.

[2] In any event, as the court states in Meyer v. Uber Tech., Inc., 868 F.3d 66, 76 (2d Cir. 2017).: Classification of web-based contracts alone, however, does not resolve the notice inquiry. See Juliet M. Moringiello and William L. Reynolds, From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting, 72 Md. L.Rev. 452, 466 (2013) (“Whether terms are classified as clickwrap says little about whether the offeree had notice of them.”). Insofar as it turns on the reasonableness of notice, the enforceability of a web based agreement is clearly a fact-intensive inquiry. SeeSchnabel, 697 F.3d at 124.

[3] Meyer v. Uber Techs., Inc., 868 F.3d 66 (2017)


One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

This judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

State: Florida: United States District Court for the Northern District of Florida, Panama City Division

Plaintiff: Brian Moore

Defendant: North America Sports, Inc., USA Triathlon

Plaintiff Claims:

Defendant Defenses: Assumption of the risk, Release

Holding: for the Plaintiff

Year: 2009

Summary

Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.

Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.

Facts

The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.

During the swim portion of the triathlon the deceased experienced distress and died three days later.

His survivors filed this lawsuit.

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

The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.

When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.

The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.

Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.

The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.

The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.

Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.

However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.

The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.

Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.

The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.

So Now What?

Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.

I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.

Check Boxes in a Release are landmines waiting to explode.

Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.

It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.

That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.

Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.

Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.

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Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Brian Moore, as Personal Representative on behalf of the Estate of Bernard P. Rice, deceased, Plaintiff, vs. North America Sports, Inc., et al., Defendants.

CASE NO. 5:08cv343/RS/MD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION

2009 U.S. Dist. LEXIS 134557

June 26, 2009, Decided

June 26, 2009, Filed

CORE TERMS: summary judgment, decedent, affirmative defenses, online, registration, fault, box, tortfeasor, choice of law, necessary to complete, sanctioning, registered, printout, Black’s Law Dictionary, last act, material fact, nonmoving party, sole cause, concurrent tortfeasors, health care providers, undisputed, off-campus, designated, causation, lawsuit, movant’s, waived, willful, usage, medical attention

COUNSEL: [*1] For BRIAN MOORE, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASED, Plaintiff: DIANA SANTA MARIA, LEAD ATTORNEY, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASE, FORT LAUDERDALE, FL; DOROTHY CLAY SIMS, LEAD ATTORNEY, LAW OFFICE OF DOROTHY CLAY SIMS ESQ, OCALA, FL; JOEL S PERWIN, LEAD ATTORNEY, JOEL S PERWIN PA – MIAMI FL, MIAMI, FL; JOHN N BOGGS, BOGGS & FISHEL – PANAMA CITY FL, PANAMA CITY, FL.

For NORTH AMERICA SPORTS INC, doing business as WORLD TRIATHLON CORPORATION, doing business as IRONMAN TRIATHLON, doing business as FORD IRONMAN FLORIDA, formerly known as IRONMAN NORTH AMERICA, USA TRIATHLON, A FOREIGN COMPANY, Defendants: JASON BERNARD ONACKI, LEAD ATTORNEY, COLE SCOTT & KISSANE PA – PENSACOLA FL, PENSACOLA, FL; LARRY ARTHUR MATTHEWS, LEAD ATTORNEY, MATTHEWS & HIGGINS LLC, PENSACOLA, FL; SHANE MICHAEL DEAN, DEAN & CAMPER PA – PENSACOLA FL, PENSACOLA, FL.

JUDGES: RICHARD SMOAK, UNITED STATES DISTRICT JUDGE.

OPINION BY: RICHARD SMOAK

OPINION

Order

Before me are Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46); Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79); Plaintiff’s Motion for [*2] Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86); Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125); and Plaintiff’s Motion for Leave to File Reply (Doc. 144).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant’s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice; there must be enough of a showing that the [*3] jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).

II. FACTS

Decedent, Bernard Rice, registered online in Montana, and participated in the 2006 Ford Ironman Florida Triathlon held in Panama City Beach, Florida on November 4, 2006. Defendant contends that Rice signed numerous waivers to participate in the race; Plaintiff denies that Rice signed any waivers. Decedent experienced distress in the swim course approximately half-way into the second 1.2 mile lap of the 2.4 mile swim course. He received medical attention, but the timing and nature of medical attention are in dispute. Rice died on November 7, 2006.

III. DUTY OWED TO PLAINTIFF

a. Assumption of Risk

Defendants contend that Rice voluntarily assumed the risk of participating in the 2006 Ford Ironman Florida Triathlon. “When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983). However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible. Id; O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Dist. Ct. App. 1982). Therefore, summary judgment is not appropriate on this issue.

b. Sanctioning Body

Defendant [*4] USA Triathlon argues that it had no duty as the sanctioning organization of the 2006 Ford Ironman Florida Triathlon. Defendants cite authority from Illinois, Massachusetts, and New York. In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event. See Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 200) (university had duty to graduate student placed in specific off-campus internship which it knew to be unreasonably dangerous); D’Attilio v. Fifth Avenue Business Ass’n, Inc., 710 So.2d 117 (Fla. Dist. Ct. App. 1998) (the party with control over land owes a duty, jury question whether defendant that coordinated and sponsored a fair on city streets, where city controlled amount of law enforcement, had a duty); Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (Principal and teacher had a duty to injured student because had the authority to control activities of school club even at a meeting held off-campus); Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999) (camp sponsor could be found negligent for falling to tell lifeguard camper suffered from seizures). It is a question of fact for the jury whether Defendant USA Triathlon had sufficient control over the 2006 Ford Ironman Florida Triathlon because of its sanction of the event to have a duty to the participants. Summary judgment is not appropriate.

IV. WAIVERS

Defendant moves for summary judgment based on [*5] the waivers decedent allegedly executed. Plaintiff moves for summary judgment on Defendants’ third and fourth affirmative defenses which read as follows.

THIRD AFFIRMATIVE DEFENSE

53. On November 6, 2005, and prior to Plaintiff’s claim in this action accruing, Decedent waived any and all claims against USAT and NA Sports. A copy of the waiver is attached as Exhibit “A.” Decedent also entered two additional waivers during race registration. Unsigned copies of the waivers entered by Decedent are attached as Exhibits “B” (although designated as a 2007 waiver, it is otherwise the same as the 2006 waiver executed by Decedent) and “C.” By entering these waivers, Decedent waived the Plaintiff’s ability to bring the claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

FOURTH AFFIRMATIVE DEFENSE

54. On November 6, 2005, and prior to accrual of Plaintiff’s claims in this action, Decedent entered a release of any and all claims against USAT and NA Sports relating to the 2006 Ford Ironman Triathlon. A copy of the release is attached as Exhibit “A.” Decedent also entered two additional releases during race registration. Unsigned copies of the releases entered by Decedent are attached as Exhibits “B” (although [*6] designated as a 2007 release, it is otherwise the same as the 2006 release executed by Decedent) and “C.” By entering these releases, Decedent has precluded Plaintiff’s claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

a. Choice of Law

First, the choice of law governing the waiver must be determined, because the applicable law might not support enforcement of the waiver, which would make the waivers irrelevant. As for the appropriate contract law to apply, the parties agree that Florida choice of law analysis is applicable.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941).
Both parties also agree that under Florida law, “lex loci contractus” provides that the laws of the jurisdiction where the contract was executed govern interpretation of the substantive issues regarding the contract. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). The determination of where a contract was executed is fact-intensive and requires a determination of “where the last act necessary to complete the contract [was] done.Id. at 1092-93 (quoting Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301, 1305 (S.D. Fla. 2002)). The last act necessary to complete a contract is the offeree’s communication of acceptance to the offeror. Id. (citing Buell v. State, 704 So.2d 552, 555 (Fla. Dist. Ct. App. 1997)). Here, it is undisputed that the last act necessary to complete the contract occurred in Montana.

Plaintiff points to Montana law, which states, “All contracts [*7] which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law. See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1295 (5th Cir. 1972); See Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990).

Defendants point to Montana law, which states, “A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” Mont. Code Ann. § 28-3-102 (2007). The race occurred in Florida; therefore, Florida law applies. In Florida, waivers or exculpatory clauses, although not looked upon with favor, are valid and enforceable if the intent to relieve a party of its own negligence is clear and unequivocal. Banfield v. Louis, 589 So.2d 441, 444-45 (Fla. Dist. Ct. App. 1991) (citing L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. Dist. Ct. App. 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. Dist. Ct. App. 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. Dist. Ct. App. 1972)).

b. Online Waivers

On November 6, 2005, Rice registered online for the 2006 Ford Ironman Florida Triathlon, which includes two waivers. In order to properly execute both waivers, the participant had [*8] to check two separate boxes. While both sides agree that Rice registered himself online, it is in dispute whether the boxes were checked. The first waiver only applies to the active.com website, which advertises various races and allows participants to fill out online registrations. However, the website has nothing to do with the actual race and is not a party to this suit. The second online waiver applies to Defendants. Defendants contend that the online registration could not be completed unless the boxes were checked, but Plaintiff contends that the printout from the online registration provided by Defendants does not contain any checked boxes (or any boxes). Whether the online wavier was properly executed is clearly in dispute.

Defendants provide a printout showing an electronic signature. However, in order to properly execute the waiver, the waivers state that the participant must check the box. Defendants fail to provide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been [*9] warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

c. Onsite Registration

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

V. BAY MEDICAL

Plaintiff moves for dismissal, or summary judgment, on Defendants’ sixth affirmative defense, which alleges that Bay Medical Emergency Medical Services was “the sole cause or contributing cause of the injuries and harm alleged by Plaintiff.” Plaintiff repeats the exact same argument in its Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125). Plaintiff argues that this is not an affirmative defense, but rather is a traditional basis for denying causation, on the ground that another entity was solely at fault. An affirmative [*10] defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Black’s Law Dictionary (8th ed. 2004). Defendants contend that Florida Statute § 768.81(3) permits a defendant to apportion fault to a non-party whose negligence contributed to the plaintiff’s injury or death.

The Florida Supreme Court held that “apportion[ing] the loss between initial and subsequent rather than joint or concurrent tortfeasors…cannot be done.” Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla. 1977). Concurrent tortfeasors are two or more tortfeasors whose simultaneous actions cause injury to a third party. Black’s Law Dictionary (8th ed. 2004). Here, Defendants and Bay Medical Emergency Medical Services are not concurrent tortfeasors, because their actions could not have occurred simultaneously. Florida law clearly states:

“[O]riginal tortfeasor is liable to victim not only for original injuries received as result of initial tort, but also for additional or aggravated injuries resulting from subsequent negligence of health care providers, even though original tortfeasor and subsequently negligent health care providers are independent tortfeasors. Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999).

Therefore, Defendants’ sixth affirmative defense is dismissed. [*11] Defendants are not entitled to include Bay Medical Emergency Medical Services on the verdict form for the jury’s consideration, but Defendants are permitted to argue that Bay Medical Emergency Medical Services were the sole cause of the injuries and harm alleged by Plaintiff as it relates to causation.

VI. CONCLUSION

IT IS ORDERED:

1. Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46) is denied.

2. Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79) is denied.

3. Plaintiff’s Motion for Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86) is granted.

4. Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125) is denied as moot.

5. Plaintiff’s Motion for Leave to File Reply (Doc. 144) is denied as moot.

ORDERED on June 26, 2009.

/s/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE