Cassidy Almquist, Plaintiff, v. Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation; Association For Challenge Course Technology, a Delaware non-profit corporation, Defendants.
Case No. 3:15-cv-01281-SB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2016 U.S. Dist. LEXIS 79261
May 20, 2016, Decided
May 20, 2016, Filed
SUBSEQUENT HISTORY: Adopted by, Motion denied by Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79002 (D. Or., June 9, 2016)
CORE TERMS: website, personal jurisdiction, swing, purposeful, forum state, weigh, http, www, inspector, jurisdictional, purposefully, inspection, acctinfo, visited, org, exercise of jurisdiction, interactive, prong, resident, direction’ test, alternative forum, quotation, consumers, litigate, comport, accreditation, adhere–, prima facie, citation omitted, general jurisdiction
COUNSEL: [*1] For Cassidy Almquist, Plaintiff: James E. Horne, LEAD ATTORNEY, Gordon Thomas Honeywell, LLP, Seattle, WA; Mario Interiano, Norma Rodriguez, Scott E. Rodgers, LEAD ATTORNEYS, PRO HAC VICE, Rodriguez Interiano Hanson Rodgers PLLC, Kennewick, WA; Reuben Schutz, Salvador A. Mungia, LEAD ATTORNEYS, PRO HAC VICE, Gordon Thomas Honeywell LLP, Tacoma, WA.
For Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation, Defendants, ThirdParty Plaintiffs: Jennifer L. Crow, LEAD ATTORNEY, Scheer & Zehnder, Portland, OR; Mark P. Scheer, Robert P. Schulhof , Jr, Scheer & Zehnder LLP, Portland, OR.
For Association for Challenge Course Technology, a Delaware non-profit corporation, Defendant: Matthew C. Casey, Bullivant Houser Bailey, PC, Portland, OR.
JUDGES: STACIE F. BECKERMAN, United States Magistrate Judge.
OPINION BY: STACIE F. BECKERMAN
FINDINGS AND RECOMMENDATION
BECKERMAN, Magistrate Judge.
Cassidy Almquist (“Almquist”) filed an Amended Complaint against Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation (collectively “Synergo”), and the Association for Challenge Course Technology, a Delaware non-profit corporation (“ACCT”), alleging claims for negligence. Almquist’s [*2] action arises from an accident at the Bar-M-Ranch, in which she fell from a Giant Swing and was paralyzed. With respect to ACCT, Almquist alleges that ACCT was negligent (1) in promulgating standards for its certified inspectors, that allow them to certify challenge courses as safe when the inspector knows that untrained challenge course workers will operate the course, and (2) by failing to include in the inspection standards a provision directing an inspector to recommend that a course be closed until workers receive proper training. (Am. Compl. ¶¶ 16, 17 and 26.)
Synergo filed an Answer to Almquist’s Amended Complaint, and ACCT filed a Motion to Dismiss for Lack of Personal Jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. On April 5, 2016, this Court heard oral argument on ACCT’s request for dismissal. For the reasons set forth below, the district judge should deny ACCT’s Rule 12(b)(2) motion.
ACCT, a professional trade association for the challenge course industry, develops and publishes standards for installing, inspecting, and maintaining challenge courses. (Am. Compl. ¶¶ 24, 25.) ACCT trains and certifies professional challenge course inspectors. (Am. Compl. ¶ 25.) Synergo relied on ACCT’s standards [*3] in inspecting the Giant Swing at issue in this litigation. (Am. Compl. ¶ 28.)
Synergo is in the business of, among other things, inspecting challenge courses. (Am. Compl. ¶ 8.) Synergo is located in Tigard, Oregon, and is a dues-paying member of ACCT. Synergo is the only accredited Professional Vendor Member (“PVM”) of ACCT in Oregon.1 Synergo’s founder and manager, Erik Marter, served on the Board of Directors of ACCT, and is the only certified ACCT professional inspector in Oregon. http://www.teamsynergo.com/our-story/ ; and http://www.acctinfo.org/?PVMList%20 (lasted visited May 20, 2016). Synergo conducts inspections of challenge courses according to ACCT standards. (Am. Compl. ¶ 28.)
1 According to ACCT, “[a] PVM of ACCT is a company which has successfully completed the Professional Vendor Member Application, including the Accreditation, process. The process includes a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards. Successful completion of this process distinguishes a PVM from other vendors, identifying the PVM as having been found to be highly experienced and competent.” http://www.acctinfo.org/?PVMList (last visited May 20, 2016).
In February 2012, Cavalry Church Tri-Cities (“Cavalry”) [*4] constructed an “adventure course” on its Bar-M-Ranch property located in Richland, Oregon that included a Giant Swing. (Am. Compl. ¶ 6.) Calvary hired Synergo to inspect the Giant Swing after construction of the challenge course was complete. (Am. Compl. ¶ 11.) Synergo sent an employee to inspect the Giant Swing in June 2012. (Am. Compl.¶ 12.) During the inspection, Synergo discovered that the Cavalry and Bar-M-Ranch staffs were not trained to operate the swing. (Am. Compl. ¶ 16.) Synergo did not direct or recommend that Calvary close the Giant Swing until the operators of the swing were trained. (Am. Compl. ¶ 17.) If recommended by Synergo, Calvary would have closed the Giant Swing. (Am. Compl ¶ 19.)
During the week of July 15, 2013, Calvary hosted a summer camp at the Bar-M-Ranch. (Am. Compl. ¶ 20.) Almquist was a counselor at the summer camp. (Am. Compl. ¶ 22.) The camp director asked Almquist to demonstrate the use of the Giant Swing for the children attending the camp. (Am. Compl. ¶ 22.) Almquist agreed to do so and a camp employee, who was not trained to operate the Giant Swing, improperly connected her to the Giant Swing. Almquist fell 50 feet to the ground, paralyzing her from [*5] the waist down. (Am. Compl. ¶ 23.)
II. LEGAL STANDARD
“In opposing a defendant’s motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper.” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (citing Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008)). “Where, as here, the defendant’s motion is based on written materials rather than an evidentiary hearing, ‘the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.'” Id. (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010)). “Although the plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted allegations in the complaint must be taken as true[,] [and] [c]onflicts between parties over statements contained in affidavits must be resolved in the plaintiff’s favor.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (internal citations and quotation marks omitted).
ACCT moves to dismiss Almquist’s Amended Complaint for lack of personal jurisdiction. ACCT argues that it lacks sufficient contacts with Oregon to permit the Court’s exercise of either general or specific jurisdiction. Almquist acknowledges that general jurisdiction is not present here, but contends that the extent and nature of ACCT’s contacts with Oregon permit the Court to exercise specific jurisdiction over ACCT. [*6]
A. Constitutional Personal Jurisdiction Standards
“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over [defendant].” Daimler AG v. Bauman, 134 S. Ct. 746, 753, 187 L. Ed. 2d 624 (2014). Oregon law authorizes personal jurisdiction over defendants to the full extent permitted by the United States Constitution. See Or. R. Civ. P. 4(L); Gray & Co. v. Firstenberg Mach. Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990) (“Oregon’s long-arm statute confers jurisdiction to the extent permitted by due process.”). The Court must therefore inquire whether its exercise of jurisdiction over ACCT “comports with the limits imposed by federal due process.” Daimler, 134 S.Ct. at 753.
“Due process requires that defendants ‘have certain minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). “The strength of contacts required depends on which of the two categories of personal jurisdiction a litigant invokes: specific jurisdiction or general jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). Specific jurisdiction is sometimes referred to as “case-specific” or “case-linked” jurisdiction, meaning it depends on an affiliation between the forum state and the underlying controversy, whereas general jurisdiction is sometimes referred to as “all-purpose” jurisdiction, [*7] meaning the court may assert jurisdiction over a defendant based on a forum connection unrelated to the underlying lawsuit (e.g., domicile, place of incorporation, or principal place of business). Walden v. Fiore, 134 S. Ct. 1115, 1121 n.6, 188 L. Ed. 2d 12 (2014). Almquist argues that specific jurisdiction exists over ACCT.
The Ninth Circuit employs the following three-prong test to determine if a defendant has sufficient minimum contacts to be subject to specific jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.
Picot, 780 F.3d at 1211 (quotations and citation omitted). Plaintiff bears the burden of satisfying the first two prongs. CollegeSource, 653 F.3d at 1076. The burden then shifts to the moving defendant to present “a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)) [*8] .
“The exact form of [a court’s] jurisdictional inquiry depends on the nature of the claim at issue.” Picot, 780 F.3d at 1212. For claims sounding in contract, courts in this circuit “generally apply a ‘purposeful availment’ analysis and ask whether a defendant has ‘purposefully avail[ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'” Id. (quoting Schwarzenegger, 374 F.3d at 802). For claims sounding in tort, courts in this circuit “instead apply a ‘purposeful direction’ test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere.” Id. Almquist asserts a tort claim against ACCT. Accordingly, ACCT’s motion to dismiss implicates only the purposeful direction test.
B. Specific Jurisdiction over ACCT
1. Purposeful Direction Test2
2 Almquist alleges a state negligence action against ACCT. As such, the “effects” test of Calder v. Jones, 465 U.S. 783, 788-89, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), is inapplicable to the Court’s purposeful direction analysis in this case. See Holland America Line Inc. v. Wartsila North America, Inc., 485 F.3d 450, 460 (9th Cir. 2007) (holding that “it is well established that the Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here” (citing Calder, 465 U.S. at 789)); Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1088 (9th Cir. 2000) (emphasizing that Calder requires [*9] the defendant to individually and wrongfully target the plaintiff).
“A showing that a defendant purposefully directed his conduct toward a forum state . . . usually consists of evidence of the defendant’s actions outside the forum state that are directed at the forum, such as the distribution in the forum state of goods originating elsewhere.” Schwarzenegger, 374 F.3d at 803; see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (“The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”). Due process permits the exercise of personal jurisdiction over a defendant who “purposefully direct[s]” his activities at residents of a forum, even in the “absence of physical contacts” with the forum. Burger King, 471 U.S. at 476.
ACCT argues that it did not purposefully direct its activities toward Oregon.3 By Declaration, Todd Domeck, Vice Chairman of the Board of Directors with ACCT, informed the Court that ACCT is a Delaware non-profit corporation with its principal place of business in Illinois. (Todd Domeck Decl. ¶ 3, Oct. 4, 2015.) ACCT has no office or registered agent in Oregon, and no employees who reside in Oregon. [*10] (Domeck Decl. ¶¶ 4-6.) Domeck also states that “ACCT was not consulted during the construction of the ‘Giant Swing,'” nor did ACCT provide training for “any employees of the Bar-M-Ranch who were to be operators of the ‘Giant Swing.'” (Domeck Decl. ¶¶ 9-10.)
3 ACCT also argues that “there has been absolutely no evidence submitted that plaintiff, the camp, or the specific ride operator . . . ever had any interaction with ACCT . . . or that they in any way relied on any information promulgated by ACCT.” (Def.’s Reply 10.) With regard to ACCT’s claim that Almquist cannot show that ACCT directed activity toward the people involved in the accident, this argument is foreclosed by the Supreme Court’s decision in Walden. 134 S. Ct. at 1122 (“[O]ur “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”) With regard to ACCT’s contention that Almquist has not shown reliance on the “information promulgated by ACCT,” that evidence is relevant to the merits of Almquist’s claim for negligence, and not to the jurisdictional question presently before the Court.
In light of those facts, the jurisdictional analysis here turns on the extent [*11] to which ACCT, as a non-profit trade association, acted by way of its website and its certification of Synergo to create a presence in Oregon. In aid of the Court’s analysis of ACCT’s purposeful direction in Oregon, the Court relies on the uncontroverted allegations of the Amended Complaint, the Micah Henderson Declaration, and the Internet websites of ACCT and Synergo.4 See Boschetto, 539 F.3d at 1015 (“plaintiff need only make a prima facie showing of jurisdictional facts” (quotations and citation omitted)).
4 ACCT argues that the websites are not authenticated and, thus, should not be considered by the Court. ACCT’s and Synergo’s websites were created and are maintained by Defendants in this case. Further, there is no challenge to the accuracy of the content presented on the websites. The parties dispute the sufficiency of ACCT’s contacts with Oregon, including contacts made through ACCT’s website. In the context of Almquist’s prima facie showing on a motion to dismiss for lack of personal jurisdiction, the Court may consider the information provided by ACCT and Synergo on their commercial websites. See, e.g., West Marine, Inc. v. Watercraft Superstore, Inc., No. C11-04459 HRL, 2012 U.S. Dist. LEXIS 18973, 2012 WL 479677, at *10 (Feb. 14, 2012) (“Courts have taken notice of defendants’ [*12] websites or characteristics thereof when determining personal jurisdiction.”); Coremetrics, Inc. v. Atomic Park.com, LLC, 370 F. Supp. 2d 1013, 1021 (N.D. Cal. 2005) (taking judicial notice of defendants’ website in personal jurisdiction analysis).
a. ACCT’s Website
The Ninth Circuit has established a sliding scale analysis to consider how interactive an Internet website is for the purpose of determining its jurisdictional effect. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (“In sum, the common thread, well stated by the district court in Zippo, is that the ‘likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.'”) (quoting Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)); see also ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002) (holding that a state may assert jurisdiction over a nonresident defendant “when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable to the State’s courts”).
On its website, ACCT describes itself as “the world’s leading and largest American National Standards Institute (ANSI) Accredited Standards Developer focused specifically and solely on the [*13] challenge course industry.” http://www.acctinfo.org (last visited May 20, 2016). Through its website, ACCT represents that it “develops, refines, and publishes standards for installing, maintaining, and managing challenge courses; provides forums for education and professional development; and advocates for the challenge course and adventure industry.” Id. ACCT’s website is an interactive commercial website, and ACCT uses it to advertise and sell its services and merchandise. Specifically, individuals and businesses may purchase memberships and ACCT’s standards book, apply and register for inspector certification courses and exams, and access challenge course related employment listings.
As of November 2015, ACCT had 2,524 total members, with 136 of those members located in Oregon. (Micah Henderson Decl. ¶ 7, Jan. 7, 2016.) As such, slightly over 5% of ACCT’s worldwide members are located in Oregon. In addition, three of ACCT’s 129 certified inspectors (2.3%) are located in Oregon. (Henderson Decl. ¶ 9.) During the period from June 1, 2014 through November 24, 2015, seven of the 200 standards (3.5%) sold by ACCT were delivered within Oregon. (Henderson Decl. ¶ 10.) ACCT attributes less than one percent of [*14] its 2015 annual dues to members located in Oregon. (Henderson Decl. ¶ 8.) Finally, as of November 12, 2015, two of the 100 job postings (2%) on ACCT’s website were related to jobs in Oregon. (Henderson Decl. ¶ 11.) ACCT solicited and transacted these sales and services through its website.
Although the business ACCT conducts in Oregon is not overwhelming, the Court concludes that the nature and quality of ACCT’s contacts with Oregon via its website are sufficient to satisfy the purposeful direction test. See Tech Heads, Inc. v. Desktop Serv. Cntr., Inc., 105 F. Supp. 2d 1142, 1150-51 (D. Or. 2000) (finding personal jurisdiction proper where plaintiff presented evidence of a transaction involving an Oregon resident made through the defendant’s interactive website); see also Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891-892 (6th Cir. 2002) (holding that quantity and specifically a “‘percentage of business’ analysis” is not the proper test for personal jurisdiction; rather the proper test is “whether the absolute amount of business conducted . . . [in the forum state] represents something more than ‘random, fortuitous, or attenuated contacts’ with the state”) (quoting Burger King, 471 U.S. at 475); Zippo Mfg. Co., 952 F. Supp. at 1126-1127 (recognizing that 3,000 subscriptions, or 2 percent of total subscriptions, was a sufficient basis for jurisdiction because the Supreme Court emphasizes the nature and [*15] quality of contacts with the forum rather than the quantity of contacts); cf. Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F. Supp. 2d 907, 923 (D. Or. 1999) (declining to find personal jurisdiction based on an interactive website when there was no evidence of transactions with forum residents or evidence that the forum was targeted).
In any event, even if ACCT’s reach into Oregon via its website was not sufficient, standing alone, to confer personal jurisdiction, the Court finds that ACCT’s reach into Oregon went beyond mere solicitation of members and sales through its website. See Brayton Purcell, 606 F.3d at 1129 (“operating even a passive website in conjunction with something more — conduct directly targeting the forum — is sufficient to confer personal jurisdiction” (quotations and citation omitted)).
b. ACCT’s Contacts Directed at Synergo
The Court finds that ACCT directly targeted Oregon through the following actions: ACCT’s certification of Oregon-based Synergo as a PVM, advertising Oregon-based Synergo as a PVM (including recommending that consumers hire Synergo), and setting standards for the inspection of challenge courses, to which ACCT required Synergo to adhere. Specifically, ACCT established and promoted PVM designations for companies, including Synergo, that successfully complete [*16] the application and accreditation process, which can take up to 18 months to complete, and includes a site visit of one-to-three days in duration. http://www.acctinfo.org/page/PVMApplication (last visited May 20, 2016). ACCT describes the process as “a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards.” Id. After the stringent review process and onsite visit, ACCT endorses the PVMs as ” highly experienced and competent . ” http://www.acctinfo.org/?page=PVMList (last visited May 20, 2016). ACCT’s website directs consumers to PVMs, including providing a link to Synergo’s website. In turn, Synergo prominently displays its ACCT membership on its website, and advertises its ACCT-certified services, including inspection services in Oregon. http://www.teamsynergo.com (last visited May 20, 2016). Finally, ACCT has utilized Oregon-based Synergo personnel in the ranks of its leadership, including Synergo’s owner, Marter (ACCT’s Board of Directors), and Lindsay Wiseman James (ACCT’s Chair of the Public Relations/Marketing Committee). http://www.acctinfo.org/?92; http://www.acctinfo.org/?page=140&hhSearchTerms=%22 synergo%22 (last visited May 20, 2016).
The Court finds that ACCT’s close relationship with and promotion of Oregon-based Synergo establishes purposeful direction [*17] into Oregon, especially when considered in conjunction with the reach of ACCT’s interactive website to Oregon members and consumers. Accordingly, the first prong of the specific jurisdiction test (purposeful direction), is satisfied here.
2. Arising out of or Relating to the Forum Activities
The second prong of the specific personal jurisdiction test requires a plaintiff to demonstrate that the claims arise out of, or are related to, defendant’s forum-related activities. Ziegler v. Indian River County, 64 F.3d 470, 474 (9th Cir. 1995). Courts apply a “but for” test — that is, a showing that the claims would not have arisen but for ACCT’s contacts with Oregon. Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001); Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995) (“We rely on a ‘but for’ test to determine whether a particular claim arises out of forum-related activities and thereby satisfies the second requirement for specific jurisdiction.”).
Almquist contends that ACCT “sent Synergo its standards book in Oregon and understood that, as a certified ACCT professional inspector, Synergo would adhere to ACCT standards when it inspected challenge courses.” (Pl.’s Opp. 7.) Almquist alleges that Synergo did adhere to ACCT standards and, as a result, she was injured. (Pl.’s Opp. 7-8.) Conversely, ACCT argues that Almquist’s negligence claim is barred by Oregon [*18] statutes and administrative rules that regulate the duties owed, and by whom, when operating an amusement ride in this state. (Def.’s Reply 5-6.) ACCT contends that, under Oregon law, it does not owe a duty to Almquist. As such, her negligence claim cannot arise from ACCT’s activities in the forum as a matter of law.
Whether Almquist may prevail on the merits of her negligence claim against ACCT is not before the Court at this time. For the purpose of the Court’s jurisdictional analysis, Almquist’s claims, as alleged, arise from ACCT’s contacts with Oregon. Almquist has alleged that “but for” ACCT promulgating deficient safety standards, she would not have fallen and sustained injuries in Oregon. Thus, the contacts ACCT had with Oregon–i.e., certifying Synergo and allegedly setting inadequate course inspection standards to which Synergo was required to adhere–are also the conduct that give rise to Almquist’s claims. Accordingly, the second prong of the specific personal jurisdiction test is satisfied here.
The third prong of the Ninth Circuit’s specific personal jurisdiction test “requires a finding that assertion of jurisdiction is reasonable,” meaning “the court must [*19] determine whether the assertion of personal jurisdiction would comport with traditional notions of ‘fair play and substantial justice.'” Unocal Corp., 248 F.3d at 925 (quoting Int’l Shoe Co., 326 U.S. at 326). To determine reasonableness, courts analyze seven fairness factors:
(1) the extent of a defendant’s purposeful interjection [into the forum]; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.
Burger King, 471 U.S. at 476-77. No one factor is dispositive; a court must balance all seven. Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486 (9th Cir. 1993).
ACCT argues that the exercise of jurisdiction would be unreasonable because it has not reached out to Oregon in any way, defending in Oregon would be a burden since it is based in Illinois, and Almquist cannot show that alternative forums are unavailable. (Mot. Dismiss 12-13.)
a. Purposeful Interjection
As discussed above, ACCT purposefully directed itself into Oregon by maintaining an interactive commercial website and by certifying and promoting [*20] Synergo. The Court finds the purposeful interjection factor weighs in favor of Almquist.
b. Burden on ACCT
Next, the court considers ACCT’s burden of litigating in Oregon. However, “unless the inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.” Caruth v. Int’l Psychoanalytical Ass’n., 59 F.3d 126, 128-29 (9th Cir. 1995). This is a high standard to meet, as courts have consistently held that modern technological advances reduce the burden of litigating in remote jurisdictions. See, e.g., Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998); Autobidmaster, LLC. V. Alpine Auto Gallery, LLC, No. 3:14-cv-1083-AC, 2015 U.S. Dist. LEXIS 65202, 2015 WL 2381611, at * 11 (D. Or. May 19, 2015) (“modern technological advances greatly reduce the burden of litigating in remote jurisdictions”).
ACCT is located in Illinois and does not have offices in Oregon. As such, there is some burden on ACCT to litigate in Oregon. However, ACCT does not contend the burden is so significant as to violate Due Process. The Court finds this factor weighs only slightly in favor of ACCT.
c. Conflict with Illinois Law
The parties agree this factor is neutral.
d. Oregon’s Interest
Oregon has a significant interest in providing a forum for people who are tortiously injured while working in the state. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (“It is beyond dispute that [*21] New Hampshire has a significant interest in redressing injuries that actually occur within the State.”) This interest extends to actions brought by nonresidents. Id.
Almquist was working in Oregon at the time of her injury. This factor weighs in favor of Almquist.
e. Efficient Judicial Resolution
The Court must also consider which forum can most efficiently resolve the dispute. To make this determination, the Court focuses on the location of the evidence and witnesses. Caruth, 59 F.3d at 129. The evidence and potential witnesses reside in Oregon, Washington, California, and Illinois. As such, one party must litigate in a foreign venue. While ACCT argues that its witnesses are located in “other states,” it does not contend that its burden is greater than Almquist’s were she forced to litigate elsewhere. In addition, this factor is “no longer weighed heavily given the modern advances in communication and transportation.” Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1133 (9th Cir. 2003).
Conversely, Almquist argues that almost all of the witnesses and evidence are located in Oregon or Washington. In addition, the accident occurred in Oregon, and the witnesses who ran the challenge course are likely residents of Oregon. Synergo is based in Oregon and performed its inspection [*22] of the Bar-M-Ranch in Oregon. The initial healthcare providers who treated Almquist are located in Oregon. Moreover, this action will go forward regardless of the outcome of the motion to dismiss because Synergo remains a defendant in this litigation. See Core-Vent Corp., 11 F.3d at 1489 (finding that efficiency factor tipped in plaintiff’s favor because the lawsuit would continue in the forum state with other parties); see also Washington State University Foundation v. Oswald, No. 3:99-cv-907-AS, 1999 U.S. Dist. LEXIS 21232, 2000 WL 251661, at *3 (D. Or. Jan. 3, 2000) (exercising personal jurisdiction where the forum state “appeare[d] to be the only jurisdiction in which the parties may totally resolve the action”).
This factor weighs in favor of Almquist.
f. Convenience and Effective Relief for Almquist
The Court next considers the importance of the forum to Almquist’s interests in convenient and effective relief. If Oregon is not a proper forum, Almquist will be forced to litigate its claim against ACCT in Illinois or Delaware, which presents inconvenience for Almquist in light of her medical condition and her claim against Synergo that will be litigated in this Court.
Traditionally, courts have not given a lot weight to this factor. See Ziegler, 64 F.3d at 476. However, the factor must be considered and it weighs in favor [*23] of Almquist.
g. Existence of an Alternative Forum
Finally, the Court must determine whether an adequate alternative forum exists. Almquist acknowledges that Illinois and Delaware are appropriate forums.5 This factor weighs in favor of ACCT.
5 At oral argument, counsel for Almquist informed the Court that the statute of limitations in both those forums likely foreclose the opportunity for Almquist to refile her negligence claim against ACCT in either Illinois or Delaware. The Court notes that savings statutes in both Illinois and Delaware may toll the statute of limitations, if this Court were to dismiss the claims against ACCT for lack of personal jurisdiction. See 10 Del. C. § 8118; 735 ILCS 5/13-217.
h. Balance of the Reasonableness Factors
Applying the seven-factor test, the Court concludes that exercising personal jurisdiction over ACCT is reasonable, and comports with fair play and substantial justice. The first, fourth, fifth, and sixth factors weigh in favor of Almquist, although the sixth factor is given little weight. The second and seventh factors weigh in favor of ACCT. The third factor is neutral. Although some factors weigh in favor of ACCT, it did not present a “compelling case” that exercising jurisdiction in [*24] this Court is unreasonable. See Boschetto, 539 F.3d at 1016 (“If the plaintiff establishes both prongs one and two, the defendant must come forward with a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.”)
All of the requirements for specific jurisdiction are satisfied here. Accordingly, the district judge should deny ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction.
For the reasons set forth above, the district judge should DENY ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 31).
V. SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
Dated this 20th day of May 2016.
/s/ Stacie F. Beckerman
STACIE F. BECKERMAN
United States Magistrate Judge
Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. Less than a week later the lawsuits are being filed in droves.Posted: January 5, 2015
This is a monumental decision that will affect all recreational activities in Oregon, not just ski areas. A decision that will give injured plaintiffs of any recreational activity the opportunity to void releases for any number or reasons.
State: Oregon Supreme Court
Plaintiff: Myles A. Bagley, Al Bagley, and Lauren Bagley
Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort
Plaintiff Claims: negligent in the design, construction, maintenance, and inspection of the jump in the terrain park.
Defendant Defenses: Release
Holding: for the Plaintiff
Prior Article written about the Appellate Decision in this Case: Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18
The facts of this case have been copies from Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18
This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is, in effect, when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.
To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.
The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding, he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days, and his pass was scanned 119 times.
Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.
The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.
The court also brought out in this case, signs posted at lifts terminals which restated the ticket was a release of liability. Oregon is the only court that had held that a lift ticket purchased to ski was a release. See Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942.
Analysis: making sense of the law based on these facts.
The court first stated it had not reviewed releases in decades. The court then reviewed the legal importance of contracts.
It is a truism that a contract validly made between competent parties is not to be set aside lightly. (“When two or more persons competent for that purpose, upon a sufficient consideration, voluntarily agree to do or not to do a particular thing which may be lawfully done or omitted, they should be held to the consequences of their bargain.”). The right to contract privately is part of the liberty of citizenship, and an important office of the courts is to enforce contractual rights and obligations. (so stating). As this court has stated, however, “contract rights are [not] absolute; * * * [e]qually fundamental with the private right is that of the public to regulate it in the common interest.”
The only contracts that will not be enforced, according to this decision, are those that are contrary to law, morality or public policy.
It is elementary that public policy requires that * * * contracts [between competent parties], when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts of justice, and it is only when some other overpowering rule of public policy * * * intervenes, rendering such agreement illegal, that it will not be enforced.
The court then looked at what issues surrounding or in a contract will void a contract based on a public policy issue. It is not that a contract may be harsh to one party to the contract. “…[t]he test is the evil tendency of the contract and not its actual injury to the public in a particular instance…” However, the court then did a 180-degree turn and stated that in this case:
Thus, for the sake of convenience–if not doctrinal convergence–we address the parties’ public policy arguments in the context of our analysis of whether, in the particular circumstances of this case, enforcement of the release would be unconscionable.
The court then proceeded to build its argument on why this contract was a violation of public policy. It first divided public policy into two types procedural or substantive.
Procedural unconscionability refers to the conditions of contract formation and focuses on two factors: oppression and surprise.
Oppression exists when there is inequality in bargaining power between the parties, resulting in no real opportunity to negotiate the terms of the contract and the absence of meaningful choice. Surprise involves whether terms were hidden or obscure from the vantage of the party seeking to avoid them.
Generally speaking, factors such as ambiguous contract wording and fine print are the hallmarks of surprise.
In contrast, the existence of gross inequality of bargaining power, a takeit- or-leave-it bargaining stance, and the fact that a contract involves a consumer transaction, rather than a commercial bargain, can be evidence of oppression.
Substantive unconscionability was then defined as how the terms of the contract are viewed.
… generally refers to the terms of the contract, rather than the circumstances of formation, and focuses on whether the substantive terms contravene the public interest or public policy.
Either issue, whether the issues in how the contract was created, procedural unconscionability, or the terms of the agreement itself, substantive unconscionability, can void a contract.
The court then went to review the contract in light of any legislation related to the activity. Although Oregon has a Skier Responsibility Act, the court did not find it was instructive in this case.
The court did find that under Oregon law, it could void a release if the results would be harsh. “Finally, this court has held that another factor for determining whether an anticipatory release may be unenforceable is the possibility of a harsh or inequitable result for the releasing party.”
The court then listed the ways a contract could be voided under Oregon law.
We glean from those decisions that relevant procedural factors in the determination of whether enforcement of an anticipatory release would violate public policy or be unconscionable include whether the release was conspicuous and unambiguous; whether there was a substantial disparity in the parties’ bargaining power; whether the contract was offered on a take-it-or-leave-it basis; and whether the contract involved a consumer transaction.
Relevant substantive considerations include whether enforcement of the release would cause a harsh or inequitable result to befall the releasing party; whether the releasee serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence.
The court refused to provide details or procedures that would void a contract. Rather the court relied on a “totality of the circumstances” test. This means it provides great leeway for a court to determine if the facts swayed a judge, not whether the facts met any set requirements.
Nothing in our previous decisions suggests that any single factor takes precedence over the others or that the listed factors are exclusive. Rather, they indicate that a determination whether enforcement of an anticipatory release would violate public policy or be unconscionable must be based on the totality of the circumstances of a particular transaction.
The court then compared the ways it had found (created) to void a contract under Oregon law to the present situation.
This was not an agreement between equals. Only one party to the contract-defendant-was a commercial enterprise, and that party exercised its superior bargaining strength by requiring its patrons, including plaintiff, to sign an anticipatory release on a take-it-or-leave-it basis as a condition of using its facilities.
This analysis completely ignored the fact the contract covered recreational activities that most other states have found remove the take it or leave it bargaining issue. The exception being Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 See Wisconsin decision has left the status of release law in Wisconsin in jeopardy
The court found because the plaintiff had no opportunity to negotiate the terms or cost then there was an inequality of bargaining power between the plaintiff and the defendant. “Simply put, plaintiff had no meaningful alternative to defendant’s take-it-or-leave-it terms if he wanted to participate in downhill snowboarding.”
The court found this alone was not enough to void the release. The court then looked at whether the results of enforcing the contract would be harsh and found this to be true.
As pertinent here, we conclude that the result would be harsh because, accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured. And that harsh result also would be inequitable because defendant, not its patrons, has the expertise and opportunity to foresee and control hazards of its own creation on its premises, and to guard against the negligence of its employees.
This analysis completely ignores the issue of whether or not the plaintiff could have examined the jump or had gone over the jump before. The defendant had introduced evidence that the season pass had been used dozens of times prior to the accident.
The court then ignored the Oregon Skier Responsibility Law and stated that even though the act had reduced the liability of a ski area it had not changed its common law liability for those conditions that are not inherent in the activity.
Skier Responsibility Law provides that “[t]o the extent an injury is caused by an inherent risk of skiing, a skier will not recover against a ski area operator; to the extent an injury is a result of [ski area operator] negligence, comparative negligence applies
The court summed up its analysis to this point stating.
In short, because (1) accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured; and (2) defendant, not its patrons, had the expertise and opportunity–indeed, the common law duty–to foresee and avoid unreasonable risks of its own creation on its business premises, we conclude that the enforcement of the release would cause a harsh and inequitable result, a factor that militates against its enforcement.
The court then looked at whether a ski area served an important public interest or function. The court found it did by adding an exception to the essential public service requirement stating that serving the public was enough.
However, like other places of public accommodation such as inns or public warehouses, defendant’s business premises–including its terrain park–are open to the general public virtually without restriction, and large numbers of skiers and snowboarders regularly avail themselves of its facilities. To be sure, defendants’ business facilities are privately owned, but that characteristic does not overcome a number of legitimate public interests concerning their operation
Because the public was invited to ski, the release violated Oregon Public Policy.
Accordingly, we reject defendant’s argument that the fact that skiing and snowboarding are “non-essential” activities compels enforcement of the release in this case. Instead, we conclude that defendant’s business operation is sufficiently tied to the public interest as to require the performance of its private duties to its patrons
The court then looked at the legal issues in a way I have never heard of before. The court accepted the plaintiff’s argument that the release was intended to prevent claims for negligence as well as for gross negligence, reckless, or intentional conduct. Although the court did not accept the argument in this case, it left the argument open for future cases.
The court summed up its opinion over a page and a half. The fact the release was written broadly caused the court’s concern.
That said, the release is very broad; it applies on its face to a multitude of conditions and risks, many of which (such as riding on a chairlift) leave defendant’s patrons vulnerable to risks of harm of defendant’s creation
However, the entire basis of its analysis was the court did not like the fact this injured plaintiff would not recover.
In the ultimate step of our unconscionability analysis, we consider whether those procedural and substantive considerations outweigh defendant’s interest in enforcing the release at issue here.
So Now What?
This case not only opened up lawsuits against ski areas but turned any recreation provider into a target. In just two weeks since the decision came down several high-dollar lawsuits have been filed in Oregon. See Mt. Hood Meadows snowboarder claims teen slammed into her, sues teen’s parents for $955,000 and Fallen tree causes Portland mountain bike racer to crash, fracture neck, $273,000 suit says.
By stating that any provider was subject to the public policy exception to releases, the court effectively found that anyone injured by a recreation provider could have their releases voided.
If you are Oregon and have a release you may want to put in that the release is only for claims of ordinary negligence. This violates every principal I have espoused over the years, but here the court found that failing to have such a clause may make an argument for voiding a release.
This decision is stretched to reach its decision, and it is written quite vaguely and broadly giving future plaintiff’s dozens of ways of voiding a release. Catastrophic injuries are going to be more likely, based on this analysis, to void a release; however, those are the ones that attract the money.
Oregon ski area ticket prices are going to increase because Oregon ski area insurance is going up.
What do you think? Leave a comment.
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Judgment included $1,110,000 in punitive damages, which is not covered by insurance and not dischargeable in bankruptcy.
Plaintiff: Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter,
Defendant: Alpine Towers International, Inc., and Ashley Sexton
Plaintiff Claims: strict liability, negligent design, and negligent training
Defendant Defenses: (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill.
Holding: for the plaintiff’s in the amount of $3,400,500.00 actual damages and $1,110,000.00 in punitive damages.
This is the appeal that I first reported at “$4.7 million-dollar verdict in climbing wall case against Alpine Towers in South Carolina Court” The plaintiff at the time of his injury was a 17-year-old student who after falling 20’ was rendered a paraplegic.
This is sad, tragic, and honestly, a disaster of a case for both the defendant and the plaintiff. Worse, this case will have far-reaching effects into the climbing wall and ropes’ course industry. It probably won’t have any effect on those association’s writing standards; however, here again, this case is proof that writing standards by an association creates the cause of action needed by the plaintiff to win and in this case, win big.
The facts of the case are convoluted and made so not by what happened, but by the contracts created by the defendant.
The defendant built an Alpine Tower and sold it to an amusement park, Carowinds. The owner, Fort Mill purchased the Alpine Tower from Carowinds. Fort Mill (former defendant who probably settled out of the case) hired the defendant Alpine Towers International “to move it, install it, and train Fort Mill’s faculty to use it safely.” The term “it” in the sentence means the alpine tower. The contract to provide those services was probably the normal contract used when selling a tower by the defendant because it referred to Alpine Towers as the “Seller.” This came back to haunt the defendant because a seller has a greater degree of liability than just a mover. The agreement stated the seller would do much more than just move the tower.
The plaintiff was climbing the tower with another student belaying him. The belay rope became stuck in the belay device. The instructor was close by, and the student attempted to un-stick the rope herself. In doing so the belayer lost control of the rope, and the climber/plaintiff fell to the ground breaking his back. The plaintiff was rendered a paraplegic by the fall.
The plaintiff sued based on three causes of action.
(1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay system.
The jury found for the plaintiff and his parents on all causes of action and awarded the plaintiff damages.
It awarded $500.00 for strict liability, $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.
Summary of the case
The defendant appealed only the injured plaintiff’s claims and judgment, not the plaintiff’s parent’s claims. The defendant lost all of its arguments on appeal.
The first issue and the third most aggravating issue in this decision was how the court accepted the jury’s decision on the strict liability theory claim. The plaintiff’s experts argued that the belay device being used on the tower was operated manually and if the defendant has supplied automatic devices the fall would not have occurred.
…Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri.
“Absence of human error” is how all accidents occur.
Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably dangerous.
So by using a particular belay device, which was not part of the climbing wall, the defendant was strictly liable. The defendant was liable for the injury because the tower was “defective” based upon the choice of belay devices.
The next issue was the negligent design claim. Negligent design in South Carolina is a failure to exercise due care with the focus on the conduct of the seller or manufacturer. The proof the court accepted in this case was:
[Plaintiff] presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers.
Proof of the negligent design claim is knowing you have a problem that injures people and failing to do anything about it. The study was the proof of the knowledge, and the plaintiff’s injury was proof of failing to do anything about the problem.
Granted, it seems to be a stretch to apply design to belayers dropping climbers; however, if you look at the structure as including the ropes and belay devices, then the claim makes more sense.
The negligent training claims the final claim and the one that will create the most problems for other people within the industry. The contract signed by the defendant for moving the tower stated that defendant would teach the owner how to use the tower. The purchaser, Fort Mill, intended to use it to teach climbing and belaying. The defendant had manuals, curriculums and classes in how to belay; however, it did not teach the owner how to teach how to belay.
First, Alpine Towers uses a written syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to [defendant’s employee’s] testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.”
However, it gets worse. The plaintiff’s expert testified that no one should belay until they have been tested.
Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. [Plaintiff’s expert] testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.”
However, the statements of the plaintiff’s experts were reinforced by the trade association that the defendant belonged to and that his own employees served on.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which [defendant] called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.
Once again, the trade association (or as the defendant described it the “climbing society”) created standards which instead of helping the defendant win a trial, were used at trial to prove the defendant was negligent.
The final defense to the jury verdict raised by the defendant was Intervening Causation. Basically, this is an argument that something happened after the negligent acts of the defendant caused by a third party who either relieved the defendant of liability or is the real cause of the injury. If the intervening act was foreseeable, then it does not break the chain of liability between the parties. To be a defense, the intervening act must be the “bolt of lightning” without a thunderstorm, which came out of nowhere.
The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.”
The defendant argued that the actions of the belayer, a co-defendant and the Fort Mill’s actions were an intervening cause. However, in this case, the acts of the defendant were foreseeable. In fact, for the belayer dropping a climber, the defendant had a study which showed what would happen.
So Now What?
The list of errors here is massive. Those errors were magnified by the plaintiff’s experts and trade association to which it belonged.
Marketing makes promises that Risk Management (actually your insurance company in most cases) must pay for. Here the wrong agreement was used where too many promises were made that were not kept by the defendant. If you put it in writing, you better make sure you are doing it; you have to complete the terms of the contract.
Add to that the language of the agreement using the term seller. The defendant created greater liability for itself. A mover moves; a seller agrees to move, set up, and in this case train.
It appears the plaintiff hired better experts. The court quoted from two of the plaintiff’s experts liberally. The court did not make a single quote from the defendant’s experts, or even mention if the defendant had an expert witness.
The defendant did a ten-year study on how people were injured using its towers. As usual, with a study that is not thought-out or done so with legal help, even when there could be legal consequences. The study was used by the plaintiff and the court to prove how negligent the design of the tower was. The study showed that most people were injured by belayers that dropped the climbers. That is what happened in this case.
The defendants own study showed the event was foreseeable, and occurred frequently. That was all the proof the plaintiff needed. If you do a study about injuries, you better solve the problems the study identifies. You just can’t look at the study and say, wow, what a great study.
Remember the big maps in ski patrol headquarters at ski resorts. Patrols used to stick a push pin or mark on the map were accidents occurred. Those maps are no longer found at the headquarters because they were proof that the ski area knew that accidents occurred at the locations with lots of holes in the map. If the injured skier can show his injury occurred at a holey part of the map, winning became much easier.
The worst part of this case is not in how it affects the defendant. The worst part is how this is going to affect climbing walls and rope’s courses across the US.
· Instructors are going to have to stand behind belayers.
· Instructional manuals have to be written in conjunction with an attorney. In this case, valuable information was removed from the manual which the judge attributed to a cause leading to the accident.
· Belay devices are going to be a nightmare. Do you use one that does not fail, but that humans fail to use properly or do you use a static device.
· Before allowing anyone to belay anywhere in the future the belayer is going to have to be tested.
The coup d’état or fait accompli of the case was the judge accepted that the defendant, who had several employees serving on the ACCT standards committee, failed to meet the standards created by the ACCT. What standard? The standard created on how to teach and test belayers.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.
Then the defendants own instruction manual was quoted by the court as proof the defendant had not followed its own standards.
Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence; however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”
This is an appellate court decision; I searched but could not find out if this has been appealed to the South Carolina Supreme Court. Hopefully……
What do you think? Leave a comment.
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Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter, Appellants/Respondents, v. Alpine Towers International, Inc., and Ashley Sexton, Defendants, Of Whom Alpine Towers International, Inc., is Respondent/Appellant.
Opinion No. 4995
399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
December 6, 2011, Heard
June 27, 2012, Filed
SUBSEQUENT HISTORY: Rehearing denied by Keeter v. Alpine Towers Int’l, Inc., 2012 S.C. App. LEXIS 248 (S.C. Ct. App., July 31, 2012)
PRIOR HISTORY: [***1]
Appeal From York County. Appellate Case No. 2009-137246. John C. Hayes, III, Circuit Court Judge.
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
COUNSEL: Richard A. Harpootlian and Graham L. Newman, both of Richard A. Harpootlian, P.A., of Columbia, for Appellants/Respondents.
Charles E. Carpenter, Jr., and Carmon V. Ganjehsani, of Carpenter Appeals & Trial Support, LLC, of Columbia, and Thomas C. Salane, of Turner, Padget, Graham & Laney, P.A., of Columbia, for Respondent/Appellant.
JUDGES: FEW, C.J. KONDUROS, J., concurs. THOMAS, J., concurring in a separate opinion.
OPINION BY: FEW
[*184] [**893] FEW, C.J.: Lawrence “Larry” Keeter and his parents brought this action against Alpine Towers International, Inc., for strict liability, negligent design, and negligent training after Larry broke his back and became a paraplegic as a result of a fall to the ground from a climbing tower designed, manufactured, and installed by Alpine Towers. The jury awarded actual and punitive damages in favor of Larry and actual damages in favor of his parents for Larry’s medical bills. After both sides filed post-trial motions, the trial court entered separate judgments in favor of Larry and his parents. Alpine Towers appeals the trial court’s decision [***2] to deny its motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to actual and punitive damages, and its motion for a new trial due to an alleged error as to apportionment. Larry appeals the trial court’s ruling requiring him to elect between his three causes of action. We affirm the denial of Alpine Towers’ motions. However, we hold the trial court incorrectly interpreted the jury’s verdict and erred in requiring [*185] Larry to elect. We remand to the trial court with instructions to enter judgment in Larry’s favor against Alpine Towers in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. 1
1 The judgment in favor of Larry’s parents is not affected by this appeal.
On May 5, 2006, the senior students at Fort Mill High School (Fort Mill) participated in a spring fling recreational field day. During field day, Larry fell more than twenty feet from the climbing tower to the ground. When he hit the ground, Larry broke a vertebra and was rendered a permanent paraplegic. He was seventeen.
Alpine Towers originally sold the climbing tower to Carowinds amusement park near Charlotte, North Carolina. Fort Mill bought the tower from Carowinds [***3] in July 2004 and hired Alpine Towers to move it, install it, and train Fort Mill’s faculty to safely use it. Fort Mill’s contract with Alpine Towers identifies Alpine Towers as “seller” and provides: “Installation includes all hardware, materials, . . . labor, . . . design work, . . . and staff training.” The wooden climbing tower is fifty feet tall, has three sides, and is shaped liked an hourglass. The central safety feature of any climbing tower is the belay system. 2 Alpine Towers designed the belay system on this climbing tower to include four participants–the climber, a primary belayer, a back-up belayer, and a faculty supervisor. The system requires the climber to wear a harness, which is secured to a climbing rope. The rope passes through a pulley at the top of the tower and down to a belay device secured to the ground at the base of the tower. The rope is threaded through the belay device, which uses bends in the rope to create friction to control the speed at which the rope passes through the device. As the [**894] climber ascends, the belayer guides the rope through the belay device to keep the rope taut. If the climber falls from the tower while climbing, [*186] the belayer uses the friction [***4] the belay device creates on the rope to keep the rope from passing back through the device, and thus protects the climber from falling all the way to the ground.
2 Alpine Towers’ instruction manual defines “belay” as “the rope or technique . . . that is used to protect a climber from falling to the ground.” See also Merriam-Webster Collegiate Dictionary 111 (11th ed. 2004) (defining belay as “the securing of a person or a safety rope to an anchor point (as during mountain climbing)”).
After a successful climb, or in the event the climber falls before completing the climb, the belayer lowers the climber to the ground in a controlled fashion by guiding the rope back through the belay device. The friction created on the rope allows the belayer to control the speed of the climber’s descent. 3 Because of the hourglass shape of the tower, a climber being lowered to the ground by the belayer is suspended in air, away from the side of the tower.
3 Alpine Towers’ CEO explained that “not very much” strength is required to hold a climber in the air because the weight is transferred through the belay device to the rope attached to the ground, so that a lightweight belayer can easily lower even a heavy [***5] climber.
Ashley Sexton, a senior at Fort Mill, served as Larry’s primary belayer. Fort Mill trained Ashley to belay as a part of the Junior ROTC program. Larry had never been trained in belaying or climbing, but successfully climbed to the top of the tower. Ashley testified that while she was lowering Larry to the ground “the rope . . . got tight in the [belay device] almost as if it were stuck” and would not move. Neither Ashley nor anyone at Fort Mill had been taught what to do if the rope became stuck in the belay device. When Ashley tried to free the rope, she lost the assistance of the device, was unable to control the rope, and Larry fell more than twenty feet to the ground.
Alpine Towers designed the belay system on the climbing tower and trained Fort Mill’s faculty how to use it. Alpine Towers provided no notice or warning to Fort Mill’s faculty that the climbing rope could get stuck in the belay device it designed into the system. Alpine Towers also provided no training or instruction on how the belayer or faculty supervisor should handle the situation if it did. Alpine Towers chose not to incorporate into the design a readily available, automatically locking belay device [***6] Larry’s experts testified would have stopped Larry’s fall. Alpine Towers did not train Fort Mill’s faculty to require the faculty supervisor to stand directly beside the belayer, which Alpine Towers admitted at trial [*187] should always be done to ensure that proper procedures were followed in the climb and to assist the belayers in the event of a situation like the one that resulted in Larry’s fall. When Larry fell, no back-up belayer was present, and no faculty supervisor was close enough to assist Ashley.
II. Procedural History
All of Larry’s damages were caused by the broken back he suffered as a result of his fall. Larry asserted three causes of action presenting three alternative theories of Alpine Towers’ liability for those damages: (1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; 4 and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay [***7] system.
4 Because Alpine Towers did the “design work” for the installation of the tower at Fort Mill, Larry’s negligent design theory includes allegations of negligence in failing to design the tower to meet the specific safety needs of Fort Mill.
Larry also filed suit against Ashley for negligence. Larry’s parents filed suit against Alpine Towers and Ashley for Larry’s medical bills. Larry and his parents settled with Fort Mill before filing suit and dismissed Ashley as a defendant before trial. The jury returned a verdict for Larry on each cause of action. It awarded $500.00 for strict liability, 5 $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive [**895] damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.
5 The jury originally returned a verdict on the strict liability cause of action in favor of Larry, but with zero damages. After the trial court instructed the jury that it must either award damages to Larry or find in favor of Alpine Towers, it returned a $500.00 award.
[*188] Alpine [***8] Towers filed a post-trial motion seeking (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill, and (5) apportionment under the Contribution Among Joint Tortfeasors Act. The trial court denied the JNOV, new trial, and apportionment motions. The court required Larry to elect between his causes of action and ordered that the settlement from Fort Mill be set-off against Larry’s recovery from Alpine Towers. Larry also filed a post-trial motion asking the trial court to enter judgment in the cumulative amount of the damage awards rather than require him to elect. The court denied Larry’s motion and ordered that judgment be entered in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages on the negligent training cause of action.
III. Alpine Towers’ Appeal
A. Directed Verdict and JNOV–Actual Damages
[HN1] “In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the [***9] party opposing the motions.” McMillan v. Oconee Mem’l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). “When we review a trial judge’s . . . denial of a motion for directed verdict or JNOV, we reverse only when there is no evidence to support the ruling or when the ruling is governed by an error of law.” Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010).
In its motions for directed verdict and JNOV, Alpine Towers contested all liability issues, including the sufficiency of the evidence supporting each of Larry’s causes of action. In its Statement of Issues on Appeal, Alpine Towers contends only that the trial court should have granted its motions because the chain of causation was broken as a matter of law. Specifically, Alpine Towers contends the chain of causation was broken by (1) “the intervening and superseding negligent [*189] acts of Fort Mill High School and Ashley Sexton in failing to follow the warnings, directions, and instructions for proper use of the Tower” and (2) “the intervening and superseding negligent acts of Fort Mill High School in failing to undertake its independent duty to properly supervise its students.” However, because [***10] both Larry and Alpine Towers address in their briefs the sufficiency of the evidence supporting each of Larry’s causes of action, we do as well. We find ample evidence to support the jury’s verdict as to each. We also find ample evidence that Ashley’s negligence and any negligence by Fort Mill was foreseeable to Alpine Towers, and thus their negligence does not break the chain of causation from Alpine Towers’ tortious conduct.
1. Strict Liability
In his strict liability theory, Larry focused on Alpine Towers’ design of the climbing tower to incorporate a belay device called Trango Jaws. The Trango Jaws is operated manually and requires the belayer to properly position the climbing rope in the Trango Jaws to create the friction necessary to stop the rope and then control the rate of the climber’s descent. Larry’s expert witness in biomechanics and sports safety, Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri. 6
6 The GriGri costs approximately $75, and the Trango Jaws costs approximately $24. [***11] The CEO of Alpine Towers testified the difference in cost is an “inconsequential amount of money.”
The GriGri is a mechanical device that, when properly threaded, does not rely on the absence of human error. In the event the belayer loses control of the rope, the GriGri automatically stops the rope, and thus protects the climber from falling to the ground. Larry’s climbing wall safety expert, Dan Hague, testified that the GriGri “locks up automatically, . . . you’re not relying on the actions of the belayer to lock the device up.” [**896] He emphasized that the automatic stopping feature of the GriGri is particularly important when students are belaying climbers because of the heightened likelihood of human error. To account for this foreseeable risk, Hague “always uses the GriGri with kids.” In Hague’s opinion, “this injury would not have occurred had a GriGri [*190] been in use that day.” As a normal part of its business, Alpine Towers sells the GriGri for a variety of uses, including on its own climbing towers. Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably [***12] dangerous.
Alpine Towers’ argument that the evidence in support of Larry’s strict liability cause of action is insufficient is that there is no evidence the tower “was in a defective condition, unreasonably dangerous to the user . . . when it left the hands of the defendant.” See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct. App. 1995). However, the evidence discussed above amply supports the jury’s finding that it was. Moreover, the GriGri qualifies as a “reasonable alternative design” as required under Branham v. Ford Motor Co., 390 S.C. 203, 225, 701 S.E.2d 5, 16 (2010). The trial court correctly denied Alpine Towers’ directed verdict and JNOV motions as to strict liability.
2. Negligent Design
[HN2] “A negligence theory imposes the additional burden on a plaintiff ‘of demonstrating the defendant . . . failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault.'” Branham, 390 S.C. at 210, 701 S.E.2d at 9 (quoting Bragg, 319 S.C. at 539, 462 S.E.2d at 326). In his negligent design theory, Larry also relied on the evidence that Alpine Towers should [***13] have used the GriGri in designing a climbing tower to be used by students, particularly student belayers. However, in addition to evidence that the tower was defective and unreasonably dangerous without the GriGri, Larry presented evidence that Alpine Towers failed to exercise reasonable care in the design. Specifically, Larry presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers. Despite this knowledge, Alpine Towers chose not to design for human error by including a belay device that would automatically lock and prevent the rope from passing back through the [*191] device, thus preventing a fall to the ground such as the one Larry suffered.
Moreover, Larry’s experts testified to several breaches of Alpine Towers’ duty of reasonable care in designing the warnings and instructions on the tower. In particular, Larry’s experts testified faculty supervisors should be instructed to remain within reaching distance of active belay ropes. Alpine Towers’ employee John Mordhurst conceded this instruction was necessary. Mordhurst testified [***14] a faculty supervisor should be at each belay point, and “[t]hey should be . . . in a position to intervene to grab a rope, . . . so they should be right next to the belayers and belay monitors.” In the 1997 edition of Alpine Towers’ instruction manual for the climbing tower, the section entitled “The Belay System” includes this requirement: “[P]rograms should require staff to check the belayer’s and climber’s systems prior to climbing and lowering; . . . the staff member should stand directly beside the climber.” However, Alpine Towers omitted the statement containing this requirement from the 2004 edition of the instruction manual, the edition it provided to Fort Mill.
Additionally, Dr. George testified Alpine Towers should have placed end user warnings on the tower for someone like Larry, who climbed for the first time without any instruction, and Ashley, who never received an instruction manual. Dr. George explained this was necessary to ensure an inexperienced climber such as Larry will know the dangers of climbing and understand how the belay system is designed to work before deciding to begin a climb. This evidence amply supports the jury’s finding that Alpine Towers failed to [***15] exercise reasonable care in designing a defective and unreasonably dangerous climbing tower. Therefore, the trial court was correct to deny Alpine Towers’ motions as to negligent design.
[**897] 3. Negligent Training
In his negligent training theory, Larry presented evidence that despite knowing Fort Mill’s faculty would not be doing most of the belaying, but rather would be teaching students to belay, Alpine Towers did not instruct the faculty how to teach belaying. Larry proved several key facts in support of this claim. First, Alpine Towers uses a written [*192] syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to Mordhurst’s testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.” The obvious purpose of this requirement is to enable the supervisor to keep the students from making errors [***16] and, if they do, to prevent the tragic consequences Larry suffered. However, Larry presented evidence that Alpine Towers did not teach this to the faculty at Fort Mill. One member of Fort Mill’s faculty who attended the Alpine Towers course testified he did not recall being told that a faculty supervisor should stand beside the belayer. When asked why the requirement that “the staff member should stand directly beside the climber” in the 1997 instruction manual was not included in the 2004 edition, Lackey responded, “I’m not sure why it was taken out.”
Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. Hague testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.” He explained:
In a climbing setting you have to be able to assess whether or not the group as a whole is making progress. . . . Since we’re talking about life safety [***17] here and not about math, if someone is not learning at the same rate as the group, you can’t just move to the next topic. You have to slow down. You have to be able to address that one person until everybody’s caught up. In addition, at the end of the training, there needs to be some type of discrete competency test.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge [*193] Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested. 7
7 Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence, however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”
This evidence provides ample support for the jury’s finding that Alpine Towers [***18] was negligent in failing to properly train the Fort Mill faculty on how to safely use the tower, and thus the trial court properly denied Alpine Towers’ motions as to negligent training.
We affirm the trial court’s decision to deny Alpine Towers’ motions for directed verdict and JNOV as to the sufficiency of the evidence supporting all three of Larry’s causes of action.
4. Intervening Causation
[HN3] The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.” McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 [**898] (Ct. App. 2009) (internal quotation marks omitted). The trial court properly charged the jury as follows:
The chain of causation between a defendant’s negligence and the injury itself may be broken by the independent intervening acts or omissions of another person over whom the defendant had no control. In order to decide whether an intervening act breaks the chain of causation, [***19] you must determine whether the intervening act or omission was reasonably foreseeable by the defendant. If the intervening act or omission was a probable consequence of the defendant’s negligence, the defendant is responsible for the plaintiff’s [*194] injuries. If, however, you find that the intervening act or omission was not foreseeable, the defendant is not liable.
By finding in favor of Larry, the jury necessarily found the actions of Ashley and Fort Mill were foreseeable, and therefore the chain of causation was not broken to insulate Alpine Towers from liability. There is ample evidence to support this finding. See Cody P. v. Bank of Am., N.A., 395 S.C. 611, 621-22, 720 S.E.2d 473, 479 (Ct. App. 2011) (“Only in rare or exceptional cases may the question of proximate cause be decided as a matter of law. . . . If there may be a fair difference of opinion regarding whose act proximately caused the injury, then the question of proximate cause must be submitted to the jury.” (internal quotation marks and citations omitted)).
Larry presented evidence that Alpine Towers knew Fort Mill would be using high school students to belay climbers, that adolescents are more susceptible to belaying errors [***20] than adults, and that Alpine Towers conducted a study concluding human error is the most common cause of falls to the ground from climbing towers. Dr. George testified Alpine Towers “knew or should have known . . . of these risks.” He stated it was not merely foreseeable, but “almost predictable,” that high school students would not follow proper procedures for belaying climbers. Hague testified that he has trained “thousands and thousands” of people in belaying over fifteen years, including “many hundreds” of adolescents, he takes different approaches to training depending on the maturity level of the belaying student, adolescents “routinely do not” follow procedures, and Alpine Towers “could easily foresee that adolescents aren’t going to follow all the procedures.”
Therefore, the primary risk associated with the use of a climbing tower is that the belayer, back-up, or faculty supervisor might make an error belaying the climber. Each of Larry’s theories of recovery focused on the allegation that Alpine Towers failed to design for and train against human error in belaying and the supervision of students belaying. This is not a “rare or exceptional” case in which the issue of proximate [***21] cause may be decided as a matter of law. Alpine Towers’ argument that “the intervening and superseding negligent acts of Fort Mill High School and Ashley Sexton” broke the chain of causation fails because there is ample evidence in [*195] the record that precisely the same human error that resulted in Larry’s injury was not only foreseeable to Alpine Towers, but was actually foreseen. Accordingly, we find the trial court properly submitted the question of proximate cause to the jury, and we affirm its decision to deny Alpine Towers’ motions for directed verdict and JNOV as to intervening causation.
B. Directed Verdict and JNOV–Punitive Damages
Alpine Towers also argues the trial court erred in denying its directed verdict and JNOV motions as to punitive damages. We disagree.
[HN4] “When ruling on a directed verdict motion as to punitive damages, the circuit court must view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party.” Hollis v. Stonington Dev., LLC, 394 S.C. 383, 393-94, 714 S.E.2d 904, 909 (Ct. App. 2011) (internal quotation marks omitted). This court applies the same standard as the circuit court. 394 S.C. at 394, 714 S.E.2d at 910. [***22] “The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant’s behavior was reckless . . . .” Mishoe v. QHG of Lake City, Inc., 366 S.C. 195, 201, 621 S.E.2d 363, 366 (Ct. App. 2005). “Recklessness implies the doing of a negligent [**899] act knowingly; it is a conscious failure to exercise due care. If a person of ordinary reason and prudence would have been conscious of the probability of resulting injury, the law says the person is reckless . . . .” Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (internal citation and quotation marks omitted).
Larry made two separate claims for punitive damages against Alpine Towers: (1) for reckless behavior in its design of the climbing tower and (2) for reckless behavior in its failure to properly train the Fort Mill faculty on how to safely use the climbing tower. The jury awarded punitive damages on each claim, so we address each independently.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in designing the tower, Larry presented evidence that Alpine Towers knew the majority [*196] of accidents occurring on its [***23] climbing towers were caused by human error by belayers and back-up belayers. Mordhurst conceded that of the three options for a belay device in the design of a climbing tower, “the GriGri has [the] highest likelihood of arresting the fall” of a climber and thus protecting him from falling to the ground if the belayer loses control of the rope. Lackey testified the additional cost of a GriGri is “inconsequential.” Alpine Towers’ decision to design its climbing tower to incorporate the Trango Jaws instead of the GriGri under these circumstances is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless design to the jury. 392 S.C. at 287, 709 S.E.2d at 612.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in failing to properly train the Fort Mill faculty, in addition to the evidence discussed above, Alpine Towers knew Fort Mill would be using student belayers, whom Alpine Towers knew to be less attentive to following procedures and more susceptible to errors in belaying than adults. Nevertheless, [***24] Alpine Towers (1) chose not to train Fort Mill’s faculty to teach others, particularly students; (2) did not include in the training materials given to Fort Mill the syllabus Alpine Towers uses to teach belaying; (3) removed from its training manual the specific instruction for faculty supervisors to “stand directly behind the climber”; (4) did not teach Fort Mill to follow the industry practice of testing belayers on the basic skills of belaying before allowing them to belay climbers; and (5) did not inform Fort Mill it had the option of an automatically locking belay device such as the GriGri to compensate for the greater risk posed by the use of student belayers. This also is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless training to the jury. Id.
Accordingly, we affirm the trial court’s decision to deny Alpine Towers’ directed verdict and JNOV motions as to punitive damages.
[*197] C. Apportionment of Fort Mill’s Fault
Alpine Towers contends it is entitled to a new trial because the trial court did not allow the jury to [***25] consider the fault of Fort Mill when it apportioned fault under section 15-38-15 of the South Carolina Code (Supp. 2011). 8 However, our ruling affirming the jury’s award of punitive damages makes it unnecessary to address this issue as [HN5] the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.” § 15-38-15(F).
8 After the jury’s verdict as to liability, the trial court required it to apportion fault between Alpine Towers and Ashley. The jury determined that Ashley was 60% at fault and Alpine Towers was 40% at fault. The jury was not asked to consider the fault of Fort Mill.
IV. Larry’s Appeal
Larry appeals the trial court’s post-trial ruling entering judgment in his favor in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages. He contends the trial court erred in interpreting the verdicts as “three awards” and requiring him to elect which cause of action would be his remedy. We agree.
[HN6] “Election of remedies involves a choice between different forms of redress [**900] afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.” Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996). [***26] Larry asserted three causes of action, but sought only one remedy–damages–for only one injury–a broken back. When a plaintiff seeks only one remedy, there is nothing to elect. See Adams v. Grant, 292 S.C. 581, 586, 358 S.E.2d 142, 144 (Ct. App. 1986) (“Where a plaintiff presents two causes of action because he is uncertain of which he will be able to prove, but seeks a single recovery, he will not be required to elect.”).
The trial court in this case recognized that Larry’s three causes of action sought only one remedy. In its post-trial order, the court wrote:
Here, both products liability claims and the negligence claim represent three theories for recovery for the same injury and damages–personal injuries sustained by [Larry] in his [*198] fall. [Larry] had one fall and all his injury and damages flow therefrom regardless of the number of acts of omission or commission of [Alpine Towers].
Because Larry sought only one remedy, the doctrine of election of remedies does not apply. [HN7] “As its name states, the doctrine applies to the election of ‘remedies’ not the election of ‘verdicts.'” Austin, 387 S.C. at 57, 691 S.E.2d at 153 (defining a “‘remedy’ as ‘[t]he means by which . . . the violation [***27] of a right is . . . compensated.'” (quoting Black’s Law Dictionary 1163 (5th ed. 1979))).
This court addressed a similar situation in Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998). The plaintiff in Creach “bit down on a hard substance in a steak biscuit made by Sara Lee Corporation,” “experience[d] severe pain,” and had to undergo “extensive dental work.” 331 S.C. at 463, 502 S.E.2d at 923-24. She sued Sara Lee and others “alleging negligence, breach of warranty, and strict liability.” 331 S.C. at 463, 502 S.E.2d at 923. After a verdict for Creach on all three causes of action, Sara Lee asked the trial judge to require her to elect her remedy. The judge refused to do so, and this court affirmed, holding “while the complaint stated three different causes of action, only one recovery was sought and only one recovery was awarded. Under these circumstances, no election was required.” 331 S.C. at 464, 502 S.E.2d at 924 (citing Taylor, 324 S.C. at 218, 479 S.E.2d at 44-45). Creach supports our holding that because Larry sought one remedy for one injury, the trial court erred in requiring him to elect.
Nevertheless, the trial court and this court must ensure that Larry [***28] does not receive a double recovery. See Collins Music Co. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct. App. 1998) ( [HN8] “It is well settled in this state that there can be no double recovery for a single wrong and a plaintiff may recover his actual damages only once.” (internal quotation marks omitted)). The determination of whether a verdict grants a double recovery begins with the trial court’s responsibility to interpret the verdict in order to ascertain the jury’s intent. The trial court interpreted the jury’s verdict in this case to be “three awards,” and therefore “inconsistent” because [*199] it allowed Larry a double recovery. We find the trial court erred in its interpretation of the verdict.
The error arose from the verdict form. Because Larry asserted three causes of action, the trial court correctly fashioned the verdict form to require the jury to write its verdict for each cause of action. However, because Larry sought only one remedy–damages–and because the amount of those damages could not vary from one cause of action to another, the trial court should have required the jury to write one amount for Larry’s actual damages, and should not have permitted the jury to write [***29] a damages amount for each of the three causes of action. The use of the three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.
[HN9] To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings, focusing on the events and circumstances that reasonably indicate what the jury intended. See Durst v. S. Ry. Co., 161 S.C. 498, 506, 159 S.E. 844, 848 (1931) (stating “the construction of a verdict should, and can, depend upon, not only the language used by the jury, but other things occurring in the trial may be, and [**901] should be, properly regarded in determining what a jury intended to find”); Howard v. Kirton, 144 S.C. 89, 101, 142 S.E. 39, 43 (1928) (stating it is “the duty of the trial judge to decide what the verdict meant, and, in reaching his conclusion thereabout, it was his duty to take into consideration not only the language of the verdict, but all the matters that occurred in the course of the trial”); see also 75B Am. Jur. 2d Trial § 1545 (2007) (“In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with [***30] certainty what the jury intended, and, for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.”).
To correctly interpret the verdict in this case, the trial court was required to consider several indications of the jury’s intention as to damages. First, the court should have considered its own conclusion that Larry sought only one remedy–damages–and that all of his damages flowed from the broken back resulting from his fall from the tower. Thus, it was not [*200] possible for the damages to vary from one cause of action to another. Second, after the jury returned the verdicts, Larry made a motion asking the court to inquire of the jury whether it meant for the damages awarded to be cumulative. Alpine Towers did not object to the request. While the jury was still in the courtroom, the judge asked the forelady if the jury intended the verdicts to be cumulative.
The Court: . . . Before you leave, I’ve got one last question. On the three causes of action you have awarded different amounts of damages. . . . Was it the jury’s intention to award those cumulatively, that is they add up to [***31] [$3.4 million and $500.00] . . . or did you simply mean that the damages as to each cause of action were to be separate . . . .
Forelady: Ask me that again.
. . .
The Court: . . . You have ordered [$500.00] on one, [$900,000.00] on one, and [$2.5 million] on one. Is it the jury’s intention that those are to be added, that is cumulative, or is the jury’s intention that as to each cause of action that award applies only to that cause of action?
Forelady: It’s cumulative.
The Court: Okay. How about . . . as to the punitive, you had [$160,000.00] and [$950,000.00], which adds up . . . to [$1.1 million] [sic]. Is it the same for that also?
Forelady: It’s cumulative.
The trial court then asked each side separately if there was “anything else before the jury’s dismissed?” Both Larry and Alpine Towers answered that they had nothing further, and the trial court dismissed the jury. 9
9 The trial court found, and Alpine Towers argues on appeal, that Larry should have sought further inquiry into the jury’s intent and that his failure to do so forecloses his argument that the jury intended the verdicts to be cumulative. We disagree. Larry is the party who initially asked the court to inquire whether the [***32] jury intended the verdict to be cumulative. Larry’s counsel stated to the court “you can either inquire of the jury here in the courtroom or you can send them out, whatever you’re comfortable with.” Alpine Towers’ counsel stated, “I wouldn’t oppose that request.” The trial court then made the decision to ask only the forelady. The forelady’s answer, “It’s cumulative,” was the answer Larry was looking for, and therefore Larry had no reason to inquire further on that subject. Alpine Towers, who at that point did have reason to inquire further, said nothing. Therefore, to the extent the lack of further inquiry should be considered, we believe it should be held against Alpine Towers.
[*201] In the context that Larry sought, and could obtain, only one damages award for the same injury, this dialogue adequately demonstrates the jury intended the damage amounts written in the three blanks on the verdict form to be added together for a total award to Larry of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. However, there was more to indicate this was the jury’s intention. During deliberations the jury sent a note to the court stating the jurors were deadlocked as to whether to award [***33] $4.5 million or $5 million and asking for suggestions. The court responded that it had no suggestions. The total amount of damages awarded, including the amount awarded to Larry’s parents, was $4.75 million, 10 which is between the two amounts [**902] listed in the note. Further, the court should have considered that it gave the jury no basis on which to find different damage awards on different causes of action. In fact, the only place in the damages instruction where the court differentiated between the causes of action at all was to explain to the jury it may award punitive damages only on the negligence theories of recovery.
10 At the point of the trial when the jury sent this note, the court had not instructed the jury it must award damages on the strict liability claim or find for the defendant. Thus, the $500.00 damages awarded on that cause of action is not included in this figure.
This court has stated that [HN10] “it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.” Daves v. Cleary, 355 S.C. 216, 231, 584 S.E.2d 423, 430 (Ct. App. 2003). In fulfilling this duty, we may not substitute our judgment for that of the jury. See Lorick, 153 S.C. at 319, 150 S.E. at 792 [***34] (stating the court has a right to give “effect to what the jury unmistakably found” but cannot “invade the province of the jury”). The jury’s verdict in this case is readily reconciled as we have explained. We can discern no other way to interpret the verdict consistent with the applicable law and the facts of this case, nor can we find in the record any reason to believe this interpretation does not reflect the intent of the jury. Moreover, during arguments on post-trial motions, counsel for Alpine Towers explained to the trial court what he believed the jury did:
[*202] Let me tell you what I think happened. . . . [When they sent the note asking for suggestions,] they advised that they had arrived at a general block of the amount of the damages that they wanted to give to compensate Mr. Keeter. What they then did because the verdict form is listed in such a way that it says actual damages and punitive damages leaving both blank that they went through and parceled out the total amount of compensatory damages that they wanted to award . . . . And the damages for all three claims are identical . . . , there is no differentiation on the damages . . . . [T]hey arrived at a larger figure then [***35] they parceled it up to fill in the blanks. 11
Interpreting the verdict based on “all the matters that occurred in the course of the trial,” Howard, 144 S.C. at 101, 142 S.E. at 43, we disagree with the trial court and find the jury did not make an “inconsistent damages award.” See 75B Am. Jur. 2d Trial § 1556 (2007) (“In order for a verdict to be deemed inconsistent, there must be inconsistencies within each independent action rather than between verdicts in separate and distinct actions.”). Rather, we find that the jury intended the amounts to be added together for a total verdict in Larry’s favor of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. Accordingly, we hold the trial court erred in its interpretation of the verdicts and judgment should have been entered in the cumulative amount of actual and punitive damages the jury wrote on the verdict form for each of Larry’s causes of action.
11 In fairness to counsel, the statement was made as part of his argument that the verdicts were inconsistent. However, we believe the statement accurately explains why the jury put different damage amounts in different blanks.
For the reasons explained above, we affirm [***36] the trial court’s decision to deny Alpine Towers’ motions for directed verdict, JNOV, and for a new trial. We reverse the trial court’s interpretation of the jury verdict and remand with instructions that judgment be entered against Alpine Towers in favor of Larry Keeter in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages.
[*203] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
KONDUROS, J., concurs.
CONCUR BY: THOMAS
THOMAS, J., concurring in a separate opinion.
THOMAS, J.: I concur with the majority as to Alpine Towers’ appeal. As to Larry’s appeal, I concur in result. I agree that this case does not involve the need to elect remedies or an inconsistent verdict. I write separately to clarify that questioning the entire jury and then conforming the jury’s verdict to the jury’s intent are the best practices for ensuring a valid verdict.
[**903] First, when a party raises a question about the jury’s intent for the verdict, the best practice is to poll all of the jurors or allow the foreperson to answer the court’s questions after consulting with the entire jury. Lorick & Lowrance, Inc. v. Julius H. Walker Co., 153 S.C. 309, 314-15, 150 S.E. 789, 791 (1929). The need to clarify the jury’s [***37] intent almost invariably arises when the language used on the verdict form is problematic. Without an inquiry of the remaining jurors, questioning only the foreperson unnecessarily risks that the jury’s precise intent will remain unknown. This danger is heightened by the likelihood of arguments that the foreperson misunderstood the court’s questions or provided a response not reflecting the entire jury’s intent.
Second, if the initial inquiry shows the jury’s intent differs from what the jury wrote on the verdict form, the best practice is to either send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. Id. at 314-15, 150 S.E. at 791. After the jury is discharged, the court may construe the verdict in a manner that diverges from the language used by the jury only when the surrounding circumstances make the jury’s intent unmistakable and the court’s construction reflects that intent. Id. at 319-20, 150 S.E. at 792-93.
I disagree with the majority’s statement in footnote 9 that Larry had no reason to seek further inquiry of the jury’s intent after the foreperson testified the actual and punitive damages amounts [***38] were cumulative. The movant has the most [*204] incentive to ask the court to send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. These practices best ensure the verdict reflects the jury’s intent, and a verdict rendered in accordance with them is nearly impossible to attack by arguing the jury’s intent is unclear. See Billups v. Leliuga, 303 S.C. 36, 39, 398 S.E.2d 75, 76 (Ct. App. 1990) (stating “a jury verdict should be upheld when it is possible to do so and carry into effect the jury’s clear intention,” and holding the jury’s intent was clear despite “some confusion in the jury’s initial written verdict” because the foreperson testified as to the jury’s intent, the clerk published the jury’s intent after the foreperson put the intent in writing, and the remaining jurors were polled to ensure their intent complied with the published intent); cf. Joiner v. Bevier, 155 S.C. 340, 351, 354-55, 152 S.E. 652, 656-57 (1930) (stating the court has the “duty to enforce a verdict, not to make it” and holding that despite some initial difficulty in getting the jury to render a verdict proper in form, the jury’s intent [***39] was “entirely clear” when the verdict after a second set of deliberations “corresponded exactly” with the special findings obtained prior to sending the jury back to deliberate). Moreover, if the above practices are not used, the movant risks having to meet its burden of establishing that the jury’s intent is absolutely clear using solely the surrounding circumstances of the case. Lorick, 153 S.C. at 319-20, 150 S.E. at 792-93. Here, the jury did not conform the verdict to its intent, nor was the jury polled. 12 Therefore, because the burden to establish the jury’s intent remains on Larry as the movant, 13 he must establish the jury’s intent was unmistakable based on the surrounding circumstances of the case.
12 In fairness to Larry, he asked the trial court to determine whether the verdict in his favor was intended to be cumulative. He suggested to the trial court, “[E]ither inquire of the jury . . . in the courtroom or . . . send them out.” The trial court instead only questioned the foreperson in the presence of the other jurors.
13 In discussing the movant’s incentive and burden, I am not referring to our rules of preservation. This issue is preserved because Larry sufficiently raised [***40] it to the trial court by seeking to clarify the jury’s intent in the above-suggested manner before the jury was discharged and the trial court ruled on his motion.
[*205] Despite the uphill battle undertaken in this case to establish the jury’s intent, I agree to remand for an entry of judgment against Alpine Towers in favor of Larry for $3,400,500.00 actual damages and $1,110,000.00 punitive damages. The surrounding circumstances of this case make the jury’s intent unmistakable. Taken together, the forelady’s testimony, the jury note, the jury charge, the total damages awarded, and the single injury alleged can lead to only one conclusion: the jury intended to award Larry [**904] $3,400,000 in actual damages 14 and $1,110,000 in punitive damages.
14 This amount omits the damages awarded for the strict liability claim because the jury note was sent before the jury re-deliberated the strict liability claim.