Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.

Aramark sued for parasailing accident when it booked the trip with an “affiliate.”

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

State: Nevada, United States District Court for the District of Nevada

Plaintiff: Jaclyn Cobb

Defendant: Aramark Sports and Entertainment Services, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2013

The plaintiff signed up to go parasailing on Lake Tahoe with Zephyr Cove Resort. Zephyr Cove Resort is described by the court as being an “affiliate of the defendant Aramark. Aramark is well known as a large concessionaire operating hotel and services in National Parks.

After signing up the plaintiff signed a release (waiver). The plaintiff went parasailing and was sailing when the weather turned bad. She was being reeled back to the boat when she struck her knee causing injury.

The plaintiff filed this claim against Aramark. (It is not stated what the relationship is between Aramark and Zephyr Cove Resort or why the plaintiff did not sue Zephyr Cove Resort.)

The defendant filed a motion for summary judgment which the court granted with this opinion.

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

Most legal decisions based where a motion for summary judgment is filed to review the requirements on what must be proved by the defendant (generally), for the motion to be granted. Generally, that occupies one to five paragraphs in the order. Most are either too succinct to explain the process or too wordy to make deciphering the process worth the effort. This court did a great job of explaining what the defendant must prove to succeed in its motion for summary judgment. The court then reviewed what the plaintiff must do to rebut the motion for summary judgment.

The party filing a motion for summary judgment must argue the facts, taken in the light most favorable to the opposing party when applied to the law show there is no genuine issue of material fact. Those facts must show that no reasonable trier of fact (a jury normally), could find any other way.

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.

To rebut the motion for summary judgment the non-moving party must point to facts in the record which so issues. The record is the evidence, depositions, responses to interrogatories and information that met the rules of evidence to be presented to the court.

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact.

If a reasonable mind could see the facts in a different way, then a motion for summary judgment is not appropriate. The issues must go to trial and be presented to a jury. The evidence presented in the motion must be genuine that means a reasonable jury can only see the evidence as pointing in one direction, saying one thing. The evidence that is not proved must be more than a scintilla; it must show there is a real dispute in how the facts can be seen.

Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff.

Consequently, when a court grants a motion for summary judgment, the evidence presented is such the court can see that evidence only proving one view of the issue and there is no other evidence that refutes that evidence sufficient to change the mind, or even make the person waiver in his or her thoughts on how the evidence is viewed.

In this case, the court found that admiralty law did apply in this case. Admiralty law is federal law that controls the seas or waters moving between two states. Lake Tahoe has shores on both Nevada and California so admiralty law was the law to be applied to the case.

The action giving rise to the admiralty law claim must be based on maritime activity. The Supreme Court and other federal courts have a very broad definition of maritime activity, and paragliding has been found to be a maritime activity.

An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity.

Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”)

Assumption of the risk is not a defense that can be used in a case covered by admiralty law. However, release is a valid defense.

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving personal injury. However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law.

Under Admiralty law, a release must meet a two-part test.

First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence

An unambiguous waiver is one that specifically bars the claims of the plaintiff and protects all the defendants. “A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit.”

The court then specifically pointed out that the injury the plaintiff is complaining of was specifically listed in the release. “Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, sprained or broken bones.

Nor does the release violate public policy. Voluntary recreational activities do not violate public policy under admiralty law.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy.

The waiver is also not an adhesion contract because again, it is for a voluntary recreational activity.

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services.

Finding that Admiralty law was the law to be applied, finding that admiralty law allowed the use of a release to stop claims for negligence and finding the release in this matter was valid, the court granted the defendants motion for summary judgment.

Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves the defendant Aramark of any liability arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

So Now What? 

This is another decision that you should keep handy if your recreational activity could be viewed as subject to admiralty law. Scuba diving, whitewater rafting, and as here parasailing, dependent on the location of the activity, can all be subject to admiralty law.

The decision is also good because its explanation of the law is simple and succinct. You want nothing better than to point to a sentence in a case to support your position that is easy to read and easily understood; no matter how intelligent the judges and attorneys are that may be reading it.

Of major importance for everyone is the court specifically pointed out that the injury the plaintiff was complaining about was one the release specifically pointed out as one that could occur in the release.

Whenever those two issues occur, the injury the plaintiff received was in writing in the release courts point it out. That should be a major flag to anyone writing a release that you need to list the risks of the activity in your release. You must list the major accidents that can occur like death and the common accidents that can occur, like sprains and strains for the activity, you are running.

clip_image002What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Parasailing, Release, Admiralty and Maritime Law, Admiralty Law, Nevada, Lake Tahoe, Aramark,

 


Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Jaclyn Cobb, Plaintiff, v. Aramark Sports and Entertainment Services, LLC, Defendant.

3:11-cv-0840-LRH-WGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

February 13, 2013, Decided

February 14, 2013, Filed

SUBSEQUENT HISTORY: As Amended March 18, 2013.

COUNSEL: [**1] For Jaclyn Cobb, Plaintiff: Angela D. Bullentini, Charles M Kilpatrick, Kilpatrick, Johnston & Adler, Carson City, NV.

For Aramark Sports and Entertainment Services, LLC, Defendant: Rachel K McLendon-Kent, Graeme A. Reid, Bauman Loewe Witt & Maxwell, Reno, NV; Terence Cox, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA.

JUDGES: LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

OPINION BY: LARRY R. HICKS

OPINION

[*1296] AMENDED ORDER

Before the court is defendant Aramark Sports and Entertainment Services, LLC’s (“Aramark”) motion for summary judgment. Doc. #28. 1 Plaintiff Jaclyn Cobb (“Cobb”) filed an opposition (Doc. #33) to which Aramark replied (Doc. #38). This Order amends Order #39. 2

1 Refers to the court’s docket number.

2 This Order is identical to Order #39, but with needed edits for punctuation and citation accuracy.

I. Facts and Procedural History

Plaintiff Cobb is seeking recovery for a knee injury allegedly sustained while parasailing with an affiliate of defendant Aramark.

On June 15, 2010, Cobb paid to go parasailing on Lake Tahoe through an operation ran by Zephyr Cove Resort (“Zephyr”). Before going on the boat for parasailing, Cobb signed a waiver of liability entitled Acknowledgment and Assumption of Risk and Waiver of Liability (“Waiver”). The waiver stated in relevant part:

In consideration of my being allowed to participate in the parasailing [**2] activities operated and conducted by [Zephyr], I hereby RELEASE and WAIVE . . . any and all claims that I may have . . . against [Zephyr], and any of [its] affiliates . . . I specifically RELEASE [Zephyr], and any of [its] affiliates . . . from . . . all claims for . . . injury or death to persons caused by negligence of any one of them arising out of my participation in the parasailing activities. I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned [*1297] parties’ negligence or from any other cause.

Doc. #28, Exhibit A.

After signing the waiver, Cobb boarded the parasailing vessel and, along with another family member, went parasailing in a tandem harness. At some point during the trip, adverse weather conditions, including high winds, caused the parasailing trip to be called short. As she was being reeled back into the boat Cobb struck her knee on the boat causing significant injury.

Subsequently, Cobb filed a complaint for negligence against Aramark. Doc. #1, Exhibit A. Thereafter, Aramark filed the present motion [**3] for summary judgment contending that Cobb expressly waived her right to sue. Doc. #28.

II. Legal Standard

Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” [**4] Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

III. Discussion

A. Applicable Law

In its motion, Aramark argues that this action, and thereby [**5] the express waiver, is governed by federal admiralty law. See Doc. #28. An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity. Charnis v. Watersport Pro, LLC, 2009 U.S. Dist. LEXIS 76022, *5-6 [*1298] (D. Nev. 2009) (citing Sisson v. Ruby, 497 U.S. 358, 365-66, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990)).

The court has reviewed the documents and pleadings on file in this matter and finds that this action falls within the court’s exercise of admiralty jurisdiction. First, the alleged injury occurred on Lake Tahoe, a navigable waterway that lies within the borders of Nevada and California. Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Charnis, 2009 U.S. Dist. LEXIS 76022, *6. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. See e.g., In the Matter of Skyrider, 1990 U.S. Dist. LEXIS 16510, *10 (D. Haw. 1990) [**6] (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”); UFO Chuting of Hawaii Inc. v. Smith, 508 F.3d 1189, 1193 (9th Cir. 2007) (holding that parasailing is an activity bearing a significant relationship to traditional maritime activities); Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“The operation of recreational boats, including pulling skiers or wakeboarders, bears a significant relationship to traditional maritime activity.”). Therefore, this action arises under the court’s admiralty jurisdiction and, as such, the court must apply substantive federal admiralty law to this action. Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“With admiralty jurisdiction comes the application of substantive admiralty law.”) (citing E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S 858, 864, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986)).

B. Assumption of the Risk

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving [**7] personal injury. See e.g., De Sole v. United States, 947 F.2d 1169 (4th Cir. 1991); Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975). However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law. See Charnis, 2009 U.S. Dist. LEXIS 76022, *10-11. Therefore, Aramark may raise the affirmative defense of express waiver in this action.

C. Express Waiver

In its motion, Aramark argues that the signed express waiver precludes the present action. See Doc. #28. Specifically, Aramark argues that under federal maritime law, pre-accident liability waivers are enforceable and may properly dispose of this action on summary judgment.

Under federal admiralty law, owners of recreational vessels may, through written waivers, disclaim liability for their own negligence. Charnis, 2009 U.S. Dist. LEXIS 76022, *11. A pre-accident waiver absolves a defendant of liability for recreational activities on navigable waters if the exculpatory clause is (1) clear and unambiguous; (2) is not inconsistent with public policy; and (3) is not an adhesion contract. [**8] Id. at 13.

The court has reviewed the documents and pleadings on file in this matter and finds that the signed waiver of liability is [*1299] enforceable. First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. See Doc. #33. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence.

A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit. See Charnis, 2009 U.S. Dist. LEXIS 76022. Here, the waiver specifically bars plaintiff from suing for her injuries. Doc. #28, Exhibit A (“I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned parties’ negligence or from any other cause.”). Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, [**9] sprained or broken bones.” Doc. #28, Exhibit A. Therefore, the court finds that the express waiver is sufficiently clear and unambiguous to cover Cobb’s injuries sustained while parasailing.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy. Charnis, 2009 U.S. Dist. LEXIS 76022, *13-14; In re Aramark Sports and Entertainment Services, LLC, 2012 U.S. Dist. LEXIS 123786, *21 (C.D. Utah 2012) (holding that maritime exculpatory clauses are enforceable when a party clearly absolves itself from liability for its own negligence).

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services. See e.g., Charnis, 2009 U.S. Dist. LEXIS 76022, *14-15; In re Aramark, 2012 U.S. Dist. LEXIS 123789, *15. Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves defendant Aramark of any liability [**10] arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #28) is GRANTED. The clerk of court shall enter judgment in favor of defendant Aramark Sports and Entertainment Services, LLC and against plaintiff Jaclyn Cobb.

IT IS SO ORDERED.

DATED this 18th day of March, 2013.

/s/ Larry R. Hicks

LARRY R. HICKS

UNITED STATES DISTRICT JUDGE


ASTM standard I abstained on is a guaranteed lawsuit starter

I’m hurt because you did not check the weather correctly!

So this is the new standard that I was asked to vote on recently.

Withdraw With Replacement to F2993-2013 Guide for Monitoring Weather Conditions for Safe Parasail Operation WK47376 PDF (8.0K)

(SEE VOLUME 15.7)(CONCURRENT WITH .6500)

TECHNICAL CONTACT: Matt Dvorak

daytonaparasailing@hotmail.com

(386) 547-6067

When I don’t fully understand the issues or have not seen the actual standard (yes it is a little crazy trying to read what you are voting on sometimes) I abstain. I did so on this standard also.

Besides voting against a standard requires you to articulate the reasons why you are voting no on the standard. “This is stupid,” is not a good reason according to the ASTM. Nor is “this is going to help plaintiff’s win lawsuits” a valid reason for voting no.

However, can’t you see this doing nothing but creating legal nightmares.

“You said you checked the weather, and you said to launch, but the wind changed because a front moved/truck came by/that is what the wind does, and I crashed. You owed me a duty to check the weather; that duty is in writing, and you agreed to it by becoming a member of the ASTM and agreeing to the standard (or not agreeing to the standard; you are still held to the standard), and my injuries are a result of you not following the standard.”

Duh

Somewhere, the ASTM, there is an idea that the creation of standards stops lawsuits, but even the ASTM can’t show any proof of that.

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, ASTM, American Society of Testing & Material, Parasailing, Paragliding, Hangliding, weather,