Convoluted procedural issues at the trial court, created a ripe field for confusion, but the appellate court held the release bard the claims of the plaintiff in the skier v. skier collision where the ski resort was also sued.

Once the jury found there was no gross negligence on the part of the plaintiff, the release stopped all other claims of the plaintiff.

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

State: California Court of Appeals, Fourth District, Third Division

Plaintiff: Grant Tuttle et al

Defendant: Heavenly Valley, L.P.

Plaintiff Claims: negligence

Defendant Defenses: …implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

Holding: For the Defendant

Year: 2020

Summary

Reading the case is confusing. A lot of the decision revolves around stipulated jury special verdict form and how the case was decided at the trial level after the jury rendered a verdict. The verdict was sort of in favor of the plaintiff; however, the stipulated part of the proceedings were used by the judge to hold for the defendant.

The plaintiff, deceased, season pass holder was hit on the slopes by a snowboarder. Her family sued the snowboarder and the ski area. The jury held the ski area was negligent but not grossly negligent. Because the deceased plaintiff had signed a release, the release stopped the negligence claims.

Facts

The jury found the plaintiff negligent, but not grossly negligent. The judge then ruled the release removed the duty on the party of the defendant so therefore the defendant was not liable.

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

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

The appellate court first looked at the release. The first analysis is what made this case stand out.

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all.

You cannot sue, because you assume the inherent risks of a sport. Therefore, a release that only protects the defendant from the inherent risks is worthless, as stated by the court.

To help everyone understand the statement above made by the court, the court reviewed Assumption of the Risk under California law.

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

[Emphasize added]

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.

[Emphasize added]

If a defendant increases the risk to participants, then the defendant is liable for any injury to a participant that occurs because of the increase in risk caused by the defendant. However, a participant may still choose to participate and may still be stopped from suing for injuries received from the increased risk if the participants know of the risks and voluntarily assumes the risk. This is called Secondary Assumption of the Risk.

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.

Secondary Assumption of the risk is part of the defenses a release provides to a defendant. However, a release provides broader and more defenses then Secondary Assumption of the risk provides. On top of that, by signing a written document, the risk outlined in the release, if any, are assumed by the participant because the document is (and should be) a release and an Express Assumption of the Risk document.

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

Not all court think exactly along these lines when reviewing releases. However, many do and all courts reach the same conclusion, just by different legal analysis.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.’

[Emphasize added]

Assumption of the risk is a great defense. However, a release provides a greater defense, a better defense and should, if properly written to incorporate the defenses available in all types of assumption of the risk.

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ ([courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is one caveat with all of this. If they actions of the defendant in changing the risk, increase the risk to the level of gross negligence, a release in most states does not act to bar gross negligence.

As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.

The court then summed up its review of the defenses of assumption of the risk and release.

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

[Emphasize added]

In reviewing the release the appellate court found it stopped the negligence claims of the plaintiff.

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence.

The court then applied its ruling on the release to the plaintiff’s argument that the defendant was grossly negligent.

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment.

The rest of the case then goes on to evaluate the appellate court’s findings and the different way the court came to its ruling at the trial court level.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; however, the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law.

The defendant won because the jury did not find the defendant was grossly negligent, and the release stopped all other claims of the plaintiff.

So Now What?

There are several things to learn from this case. The first is the intricacies, procedures and rulings that the trial system has, make any trial a nightmare now days. It is nothing like TV, more like a game of war played out on a board with dozens of books or rules that must be consulted before every move.

The second is the value and power of a release. Even after the plaintiff won the trial, the release came back into to play to defeat the claims of the plaintiff.

Thirdly the education the court provided and copies into this post about assumption of the risk as a defense, the different types of assumption of the risk and how your release should incorporate assumption of the risk.

Make sure your release incorporates assumption of the risk language and is written to protect you in the state where you are doing business for the business you are running.

What do you think? Leave a comment.

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Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Grant Tuttle et al., Plaintiffs and Appellants,

v.

Heavenly Valley, L.P., Defendant and Respondent.

G056427

California Court of Appeals, Fourth District, Third Division

February 5, 2020

NOT TO BE PUBLISHED

Appeal from a judgment and postjudgment orders of the Superior Court of Orange County No. 30-2015- 00813230 Nathan R. Scott, Judge. Affirmed.

The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

OPINION

DUNNING, J. [*]

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.[ 1] Defendant asserted as defenses the doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant ;unreasonably increased the risks… over and above those inherent in the sport of skiing. The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

A judgment in plaintiffs’ favor typically would have followed as a matter of course unless defendant formally moved for, and was granted, a judgment notwithstanding the verdict (JNOV). However, the trial court determined the jury’s factual finding that defendant was not grossly negligent, coupled with its legal conclusion that the release provided a complete defense to plaintiffs’ lawsuit, compelled entry of a judgment in defendant’s favor, even without a posttrial JNOV motion.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.

THE RELEASE

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.[ 2] The release begins with an all-capital advisement: WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS. Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. In paragraph 2, she ASSUME[D] ALL RISKS… known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions;… variations in terrain; design and condition of man-made facilities and/or terrain features;… [and] collisions. Paragraph 5 advised: The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably avoided without changing the nature of the Activities.

Paragraph 6 included Tuttle’s express agreement NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY… for… injury or loss to [her], including death. This paragraph specifically advised that Tuttle was releasing all CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE…. In paragraph 13, Tuttle agreed the release was binding to the fullest extent permitted by law… on [her] heirs, next of kin, executors and personal representatives.

II.

THE ACCIDENT AND THE LAWSUIT

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

Plaintiffs sued defendant and Slater.[ 3] Defendant raised the defenses of implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

III.

THE JURY TRIAL

The jury trial spanned five weeks.[ 4] The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered yes to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel were not making any changes to the special verdict form.

The following day, at the close of evidence and outside the jurors’ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.[ 5] The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: [Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and-release of liability and waiver was executed-existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated. (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could end up finding that the release was not valid and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as the release in evidence releases negligence. And the questions on the verdict form go[] to gross negligence, and-this doesn’t have to do with the release, but the increase of unreasonable risk. Defendant’s counsel remarked the dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form. Plaintiffs’ counsel concurred: Right. Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, [a]t the end of the day, it’s a simple exercise. That jury form…. [¶]… If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them-you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

THE SPECIAL VERDICT

As to defendant, the special verdict form included three liability questions, three damages questions, and three comparative fault/apportionment of liability questions. The liability questions read as follows:

3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

Yes X No __

4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

Yes __ No X

If you answered Yes’ to either question 3 or 4, then answer question 5. [¶] If you answered No’ to both questions 3 and 4, and also answered No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

If you answered Yes’ to both questions 1 and 2, and answered No’ to both questions 3 and 4, insert the number 0′ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

Yes X No __

Because the jury answered yes to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2, 131, 831, with Tuttle and defendant sharing equal responsibility.

Immediately after polling the jurors, the trial court asked plaintiffs’ counsel to prepare the judgment and submit it the next morning. The trial court then thanked and discharged the jury without objection from trial counsel. No one noted on the record that express assumption of the risk was a complete defense to the jury’s verdict.

V.

ENTRY OF A DEFENSE JUDGMENT

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1, 065, 915.50, plus costs and interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.[ 6]

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle. The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: [D]efendant has prevailed on the express assumption issue and negate[d] the defendant’s duty of care, an element of the plaintiff’s case.’

The trial court acknowledged the structure of the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

PLAINTIFFS’ POSTJUDGMENT MOTIONS

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint. (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence, [ 7] the special verdict was hopelessly contradictory because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ postjudgment motions. Plaintiffs timely appealed.

DISCUSSION

I.

THE RELEASE COVERED TUTTLE’S ACCIDENT.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so the scope of a release is determined by [its] express language. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

A.

OVERVIEW: ASSUMPTION OF THE RISK

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight)[ 8] and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing.[ 9] Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367 (Allan).) Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. (Allan, supra, 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra, 3 Cal.4th at p. 308.)

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. (Knight, supra, 3 Cal.4th at p. 314.) Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility. (Ibid.; see Allan, supra, 51 Cal.App.4th at p. 1367.)

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.’ (Hass, supra, 26 Cal.App.5th at p. 27.)

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ [Citation.]’ [Citation.] As we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ (Cohen, supra, 159 Cal.App.4th at p. 1485; see Allan, supra, 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777 (Santa Barbara).)

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

B.

ANALYSIS

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only concern is whether the release in this case negated the duty element of plaintiffs’ causes of action.’ (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra, 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed ALL RISKS associated with [skiing], known or unknown, inherent or otherwise. She also agreed not to sue defendant and to release it FROM ALL LIABILITY… BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE. No more was required.

Defendant’s use of the phrase, inherent or otherwise did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, [t]he term otherwise,’ when paired with an adjective or adverb to indicate its contrary’… is best understood to mean NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release bears many similarities to the release in Cohen, supra, 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently and unexpectedly provoke[d] a horse to bolt and run without warning (id. at p.1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement to assume responsibility for the risks identified herein and those risks not specifically identified.’ (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted the trial court apparently granted summary judgment on the theory that the risks not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding. (Cohen, supra, 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use the word negligence’ or any particular verbiage… [it] must inform the releasor that it applies to misconduct on the part of the releasee. (Id. at pp. 1488 1489.) The release in Cohen used the word negligence only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release also did not indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities. (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra, 159 Cal.App.4th at p. 1494-1495.)

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence. (Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4.)

The release in Zipusch, supra, 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra, 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra, 26 Cal.App.5that p. 18.)

Addressing the release, Hass held: By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the [plaintiffs’] wrongful death claim for ordinary negligence. [ 10] (Hass, supra, 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid release and no gross negligence by defendant, the issue of inherent risk was no longer relevant. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 353 [where the doctrine of express assumption of risk applies, implied assumption of the risk is no longer considered].)

II.

ENFORCEMENT OF THE RELEASE DOES NOT VIOLATE CALIFORNIA’S PUBLIC POLICY.

Plaintiffs next argue the release’s exculpatory language violates California’s public policy. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of aggravated negligence. Plaintiffs argue Santa Barbara, supra, 41 Cal.4th 747 left open the question of whether public policy precludes the contractual release of other forms of aggravated’ misconduct, in addition to gross negligence. (Some capitalization omitted.) The argument is raised for the first time on appeal; it has no merit.

In Santa Barbara, a parent signed an agreement releasing the defendants from liability for any negligent act’ related to her child’s participation in summer camp. (Santa Barbara, supra, 41 Cal.4th at p. 750.) The child drowned. (Ibid.) The trial court denied the defendants’ motion for summary judgment based on the release, and the appellate court denied defendants’ petition for writ of mandate challenging that ruling. (Id. at p. 753.) The sole issue before the Supreme Court was whether a release of liability relating to recreational activities generally is effective as to gross negligence. (Id. at p. 750.)

The defendants argued California law, specifically Civil Code section 1668, [ 11] impliedly allowed recreational activity releases to be enforced against a claim of gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 762-763.) At the time, no published California decision voided[] an agreement purporting to release liability for future gross negligence. (Id. at p. 758.) The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. (Id. at pp. 760-762.)

References in Santa Barbara to aggravated wrongs (a term used by Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 484) (Santa Barbara, supra, 41 Cal.4th at pp. 762, 765, 776) and aggravated misconduct (id. at pp. 760, 762, 777, fn. 54) do not suggest a new species of negligence that might affect a liability release for recreational activities. Rather, those phrases encompassed misconduct that included gross negligence and willful acts. (Id. at p. 754, fn. 4.) As the majority held, the distinction between ordinary and gross negligence’ reflects a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. (Id. at p. 776.) With a valid release, a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to [the] plaintiffs. (Santa Barbara, supra, 41 Cal.4th at p. 781.)

Here, no public policy considerations preclude the enforcement of defendant’s recreational activity release that exculpated it from liability for its own ordinary negligence. (Knight, supra, 3 Cal.4th at p. 309, fn. 4.)

III.

THE TRIAL COURT DID NOT ERR BY ENTERING JUDGMENT IN FAVOR OF DEFENDANT.

Plaintiffs argue the trial court should have entered judgment in their favor regardless of the jury’s finding concerning gross negligence because the jury made findings on damages and apportioned fault between Tuttle and defendant. They contend the responsibility to seek a JNOV or some other postjudgment remedy should have fallen to defendant, not plaintiffs. But once the trial court determined the special verdict was not inconsistent and Tuttle’s express release provided a complete defense as a matter of law, entry of a defense judgment was proper. Even if the trial court erred in entering a defense judgment without a formal motion for JNOV, any error was harmless.

A.

LEGAL PRINCIPLES GOVERNING SPECIAL VERDICTS

A special verdict must include conclusions of fact as established by the evidence… [so] that nothing shall remain to the Court but to draw from them conclusions of law. (Code Civ. Proc., § 624.) A special verdict is not a judgment. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332.) If a special verdict includes findings on inconsistent theories, the findings on the legal theory that does not control the outcome of the litigation may be disregarded as surplusage. (Baird v. Ocequeda (1937) 8 Cal.2d 700, 703.) Additionally, where no objection is made before the jury is discharged, it falls to the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’ (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457; see Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092.)

B.

THE TRIAL COURT’S RULING

As noted, the jury was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court recognized and fulfilled its duty to interpret the special verdict: After [this] court rejected several unilateral proposals, the parties stipulated to a special verdict form…. But they did so before the court construed the release in response to defendant’s nonsuit motion and before the parties stipulated Ms. Tuttle entered into the release. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. Question #4 asked whether defendant acted with gross negligence. [¶] The answer NO’ to either Question #3 or #4 exonerates defendant. Answering No’ to Question #3 would foreclose the only relevant exception to the primary assumption defense. Answering NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. [¶] But the form allowed the jurors to answer YES’ to one question and NO’ to [the] other one and continue to answer questions, including determining and allocating damages. (Italics and bold omitted.)

The trial court further explained: Here, the specific finding that defendant did not act with gross negligence controls over the general award of damages. The jury was properly instructed with the definition of gross negligence. The jury received percipient and expert testimony that, if credited, showed defendant did not act with gross negligence. The parties argued whether defendant [did] or did not act with gross negligence. The answer NO’ to Question #4 unambiguously shows the jury found defendant did not act with gross negligence. That resolved the only factual question on the express assumption issue in favor of defendant. [¶]… [¶] The award of damages is not a hopeless inconsistency so much as it is mere surplusage once the court honors the jury’s unambiguous finding that defendant acted without gross negligence and draws the legal conclusion-a conclusion that [the] jury was not asked to draw-that the release covers these claims and effects an express assumption of the risk.

The trial court also correctly concluded the jury’s findings on Question[] #3 and Question #4 [were not] irreconcilable. The concept of unreasonably increasing inherent risks is distinct from the concept of gross negligence. In a particular case, the same facts that show an unreasonable increase in the inherent risks may also show gross negligence. [Citation.] Overlap is possible, [but not] necessary. In this case, the jury found no such overlap. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. And that, after five weeks of trial, is what happened here.

C.

ANALYSIS

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 781.) There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment. Accordingly, Question No. 3 concerning whether defendant unreasonably increased the inherent risk should have been removed from the special verdict form.

Also, the special verdict form should have instructed the jury that if it found defendant was not grossly negligent, it should not answer the remaining questions. The jury’s compliance with the trial court’s instructions and consequent damages-related findings were surplusage, but did not create an inconsistency with its finding that defendant did not act with gross negligence. The trial court correctly entered judgment in favor of defendant based on the dispositive finding of no gross negligence. The trial court’s explanation of its ruling demonstrates the trial court’s application of the correct legal principles in doing so.

In their appellate opening brief, plaintiffs argue defendant forfeited any objection to the special verdict form because it (1) failed to object to the special verdict before the jury was discharged; (2) invited the erroneous instructions in the special verdict form because it had participated in drafting it; and (3) failed to bring a statutorily authorized post-trial motion challenging the special verdict form. Although the special verdict form should have been amended before deliberations, there is no issue of forfeiture or invited error on defendant’s part.

The parties jointly agreed on the wording of the special verdict form. Any fault in the drafting cannot be assigned to one side over the other, and all parties bear responsibility for the erroneous directions in the stipulated special verdict form. Nothing in the record suggests the special verdict form or the objection to entry of a plaintiffs’ judgment was the product of gamesmanship. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183.)

Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. As part of the discussion pertaining to the parties’ stipulation, however, both the trial court and defendant’s trial counsel questioned the adequacy of the special verdict form. But plaintiffs’ trial counsel maintained the special verdict form was fine as is and persuasively argued against making any changes or advising the jury of the stipulation. This meant the doctrine of implied secondary assumption of the risk was not relevant unless the jury found defendant acted with gross negligence.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; but the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law. Under these circumstances, it would have been a waste of resources to require defendant, or the trial court on its own initiative, to formally notice a motion for JNOV (Code Civ. Proc., § 629, subd. (a)).

Even if we found the procedure to have been erroneous, the error would have been procedural, not substantive; and, plaintiffs have not demonstrated the likelihood of a different outcome. (See Webb v. Special Electric, Co., Inc. (2016) 63 Cal.4th 167, 179 [because the defendant did not have a complete defense as a matter of law, the entry of JNOV was unjustified [on the merits]. In light of this conclusion, we need not reach plaintiffs’ claims of procedural error].) Defendant had a complete defense; there is no reasonable probability the trial court would have denied a formal JNOV motion.

Plaintiffs argue they relied on the state of the special verdict form in making the decision to stipulate to the validity of the release agreement. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Such an argument is without support in the law. It is also belied by the record. As already discussed, both defendant’s counsel and the trial court raised questions concerning the special verdict form once the parties stipulated to Tuttle’s execution of the release. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form.

IV.

PLAINTIFFS ARE NOT ENTITLED TO A NEW TRIAL.

Plaintiffs argued in their motion for new trial that the special verdict was hopelessly contradictory and, consequently, against the law. Plaintiffs also asserted there were errors in the special verdict form, they excepted to those errors, but then were penalized because the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley. Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. 431, [ 12] to which they agreed, misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence.

On appeal, plaintiffs ask this court to reverse the denial of their motion for a new trial. They fail to cite applicable authorities to support their arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Instead, they contend the trial court changed the rules of the game only after the game had already been played, leaving the parties and their counsel without the opportunity to satisfy those new rules, and robbing the jury of the ability to assess all viable liability options. Plaintiffs add they stipulated to Tuttle’s execution of the release in reliance on the wording of the then existing Special Verdict form, which… made clear that a finding of gross negligence was only one of two disjunctive liability paths, and was not necessary to impose liability against Heavenly. As a consequence, [plaintiffs]… were… induced into a stipulation concerning that issue in light of the wording of the existing Special Verdict form, an unfair sequence which the trial court itself acknowledged worked against [plaintiffs]. This characterization misstates the record.

First, the trial court made legal rulings throughout trial when called upon to do so. The trial court did not change any of its pronouncements of law after the trial concluded. The record shows the trial court gave the parties every opportunity to revisit the jury instructions and special verdict form before they were given to the jury.

Second, although the trial court described the sequence of events, it did not suggest the events were unfair or worked against plaintiffs. As discussed ante, when the trial court denied defendant’s renewed motion for nonsuit, it advised counsel the jury must decide whether Tuttle actually executed the release. Because neither side proposed jury instructions or questions on the special verdict form addressing the issue of contract formation, defendant’s counsel suggested they should revisit both the jury instructions and the special verdict form. Plaintiffs’ trial counsel immediately stipulated to Tuttle’s execution of the release and advised he would proceed with the verdict form as is. This statement calls into question plaintiffs’ claim they were induced into entering into the stipulation.

Third−and significantly−plaintiffs’ counsel did not discuss disjunctive liability paths in his closing arguments. Instead, plaintiffs’ counsel focused on the evidence and urged the jury to find gross negligence: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

The jury unanimously found defendant did not act with gross negligence. The jury’s function is to make ultimate findings of fact, and it is the trial court’s responsibility to apply the law to the relevant findings of fact. Nothing in the special verdict form misled the jury with regard to the factors it should consider in making any particular finding. We conclude the trial court correctly applied the law and entered judgment accordingly.

DISPOSITION

The judgment and post judgment orders are affirmed. Respondents shall recover costs on appeal.

WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.

———

Notes:

[*] Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[ 1] We refer to Dana Tuttle as Tuttle and to her spouse and sons collectively as plaintiffs. We refer to Heavenly Valley as defendant.

Plaintiffs erroneously identified Heavenly Valley in the complaint as the Vail Corporation. There is no dispute Heavenly Valley is the correct defendant in this case.

[ 2] Tuttle purchased the ski pass online. No actual signature was required; she signed the release by clicking the appropriate box on the electronic form.

[ 3] The jury exonerated Slater from liability. He is not a party to this appeal.

[ 4] The appellate record is lengthy. Given the limited issues before this court, however, we do not recite the trial evidence in detail.

[ 5] The trial court denied defendant’s first nonsuit motion two days earlier. At that time, the trial judge announced he would be prepared to find as a matter of law that colliding with a snowboarder or colliding with a tree is an inherent risk of skiing, but the jury would decide whether defendant unreasonably increased the inherent risk of the sport.

[ 6] Defendant also requested a statement of decision addressing the applicability of primary implied and express assumption of the risk doctrines; the trial court denied the request. The trial court’s denial of this request is not at issue in this appeal.

[ 7] Plaintiffs do not challenge the sufficiency of the evidence in this appeal.

[ 8] Knight, supra, 3 Cal.4th 296 was a plurality decision authored by Chief Justice George that all members of the court except Justice Kennard subsequently accepted. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107, citing Shin v. Ahn (2007) 42 Cal.4th 482, 491.)

[ 9] Whether a risk is inherent to a particular active sport presents a question of law for the court. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 23 (Hass).)

[ 10] So it is here. Paragraph 13 of Tuttle’s release also binds her assignees, subrogors, distributors, heirs, next of kin, executors and personal representatives.

A wrongful death action is not a derivative action. Nonetheless, although an individual involved in a dangerous activity cannot by signing a release extinguish his heirs’ wrongful death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk. (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 852; see Hass, supra, 26 Cal.App.5th at p. 25 [In other words, although a decedent cannot release or waive a subsequent wrongful death claim by the decedent’s heirs, that decedent’s express agreement to waive the defendant’s negligence and assume all risks’ acts as a complete defense to such a wrongful death action].)

[ 11] Civil Code section 1668 lists the types of contractual releases that are unenforceable as a matter of public policy (i.e., those exempting anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent). Gross negligence is not on the list.

[ 12] Plaintiffs do not challenge the modified version of CACI No. 431 in this court, either. The modified instruction read: If you find that Heavenly Valley unreasonably increased the inherent risks of snow skiing, or that Heavenly Valley was grossly negligent, and also find that Heavenly Valley’s conduct was a substantial factor in causing Dana Tuttle’s harm, then Heavenly Valley is responsible for the harm. Heavenly Valley cannot avoid responsibility just because some other person, condition, or event, including but not limited to Dana Tuttle’s own negligence or the acts of Anthony Slater were also a substantial factor in causing Dana Tuttle’s harm.

———


Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Michael Marino, an infant under the age of 18, by his Mother and Natural Guardian, Elena Marino, and Elena Marino, Individually, Plaintiffs,

v.

Richard Morrison, Jr, Carmela Morrison and Richard Bedrosian, Defendants.

No. 2016-31876

Index No. 10-11831

CAL. No. 15-00738OT

Supreme Court, Suffolk County

September 8, 2016

Unpublished Opinion

MOTION DATE 9-15-15

ADJ. DATE 3-1-16

SURIS & ASSOCIATES, P.C. Attorney for Plaintiffs.

JOHN T. McCARRON, PC Attorney for Defendant C. Morrison.

PENINO & MOYNIHAN, LLP Attorney for Defendant Bedrosian.

PRESENT: Hon. PETER H. MAYER, Justice

PETER H. MAYER, J.S.C.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by defendant Carmela Morrison, dated August 19, 2015, and supporting papers; (2) Notice of Cross Motion by defendant Richard Bedrosian, dated August 19, 2015, and supporting papers; (3) Affirmation in Opposition by plaintiffs, dated December 1, 2015, and supporting papers; (4) Reply Affirmations by defendants, dated February 28, 2016 and January 4, 2016, and supporting papers; (and after hearing counsels’ oral arguments in support of and opposed to the motion); and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. 001) by defendant Carmela Morrison and the motion (seq, 002) by defendant Richard Bedrosian are consolidated for purposes of this determination; and it is

ORDERED that the motion by defendant Carmela Morrison for summary judgment dismissing the complaint against her is granted; and it is further

ORDERED that the motion by defendant Richard Bedrosian for summary judgment dismissing the complaint against him is granted.

This action was commenced by plaintiff to recover damages for injuries infant plaintiff Michael Marino allegedly sustained as a result of an accident involving an all-terrain vehicle (ATV) on July 28. 2009. The complaint alleges that Mr. Marino was a passenger on the rear seat of the ATV, that he was caused to be ejected from the ATV, and that the accident took place on property located behind the address known as 29 Buckingham Drive, Dix Hills, New York. Elena Marino individually asserts a derivative claim for loss of love, services, companionship, and household support. Defendant Richard Bedrosian asserts cross claims against defendant Richard Morrison, Jr., who has tailed to appear in this action.

Defendant Carmela Morrison now moves for summary judgment in her favor on the grounds that she is exempt from liability pursuant to General Obligations Law §9-103. that Mr. Marino assumed the risk inherent in the activity, and that plaintiffs lack knowledge as to the location of the alleged accident or the manner in which it occurred. In support of her motion, Ms. Morrison submits copies of the pleadings and transcripts of the deposition testimony of Michael Marino, Richard Bedrosian, and herself.

Defendant Richard Bedrosian also moves for summary judgment in his favor on the grounds that he is exempt from liability pursuant to General Obligations Law § 9-103, plaintiffs lack knowledge as to the location of the alleged accident or die maimer in which it occurred, and he had no knowledge that Mr. Marino was present on his property, and Mr. Marino assumed the risk inherent in the activity. In support of his motion, he submits copies of the pleadings and transcripts of the deposition testimony of himself and Michael Marino.

At his deposition, infant plaintiff Michael Marino testified that, on the date in question, he was 15 years old and was spending time at the house of his school friend, Richie Morrison. Mr. Marino indicated that Mr. Morrison’s father purchased an ATV for Mr. Morrison “a few years” prior, which was parked on the premises next to a shed. Mr. Marino explained that he, Mr. Morrison, and Mr. Morrison’s cousin were waiting for a few friends to arrive at Morrison’s house. Mr. Marino testified that at some point, after it had gotten dark outside and when Mr. Morrison’s parents were not home, Mr. Morrison and his cousin began drinking liquor they had stolen from Mr. Morrison’s parents’ liquor cabinet, Mr. Marino explained that the young men had been playing video games in Mr. Morrison’s basement for a number of hours, but eventually went into the backyard, at which time Mr. Morrison and Mr. Morrison’s cousin began driving the ATV in question around the backyard of the premises. Mr. Marino, upon being offered a ride on the ATV, stated that he climbed aboard and sat behind Mr. Morrison and that neither one of them wore a helmet. Mr. Marino testified that after he sat down on the ATV, Mr. Morrison began driving it on the premises and the next thing he remembers is waking up in a basement with people “picking branches out of [his] head.” He stated that although they started out riding the ATV in Mr. Morrison’s backyard, due to his losing consciousness he is unable to identify exactly where the accident took place. Mr. Marino testified that he later came to learn from “mutual friends” that the accident occurred due to the ATV’s brakes failing, the ATV hitting something, and he and Mr. Morrison being thrown off the ATV. Mr. Marino further testified that he was later informed by his friend, Peter Frisina, that he, too, was injured in a similar way on that same ATV.

Regarding his experience with ATVs. Mr. Marino testified that his father owned one and he had both driven it and been a passenger on it “since [he] was young, ” Mr. Marino stated that neither Carmela Morrison nor Richard Bedrosian ever gave him permission to ride on Mr. Morrison’s ATV, and that neither parent was aware of any alcohol consumption by the young men.

At her deposition, Carmela Morrison testified that her partner, Richard Bedrosian, owns the subject premises. She further testified that she was not home at the time of the alleged ATV accident, but was told by various parties that, contrary to plaintiffs’ allegations, Mr. Marino had been the driver of the ATV and that her son was the rear passenger. Ms. Morrison indicated that she had taken her son and Mr. Marino to the beach earlier in the day with Mr. Marino’s mother’s permission. She stated that at approximately 6:00 p.m., after they all had returned to the subject premises, she left the house in order to attend a networking event. She explained that she asked Mr, Marino if his mother was coming to pick him up and he said “yes.” She informed him that he was welcome to stay to eat some pizza that she had recently ordered. She testified that she then left the young men at the premises with Mr. Morrison’s 20-year-old sister, Kristina, who was preparing to go out and was not present at the time of the accident. Carmela Morrison indicated that at approximately 8:00 p.m. she received a call saying that there had been an accident at the premises and she went home immediately. When asked whether her son obtained permission from her to use the ATV on the date in question, she replied “[a]bsolutely not.” Regarding prior accidents involving the ATV, Ms. Morrison testified that a few months prior to the date in question, Mr. Morrison’s friend, Peter, was driving it, fell off of it, and sustained scratch to his face. She further testified that after Peter’s fall, she “took the key and gave it to Bedrosian and said T don’t want this ATV used at alt.'”

At his deposition, Richard Bedrosian testified that he is the owner of the subject premises, but does not know exactly where the accident in question occurred, although he was told by his girlfriend, Carmela Morrison, that it happened “off property, ” on state land behind his backyard. He stated that his property is approximately 1.9 acres in size, completely fenced, with the backyard consuming % of that land. Of that backyard, he explained, Vi of it is ungroomed woods. Regarding the ATV in question, Mr. Bedrosian testified that it was a Christmas gift from Mr. Morrison’s biological father, defendant Richard Morrison, Jr., to Mr. Morrison, which he received approximately seven months before the accident. Mr. Bedrosian testified that he strongly disapproved of the ATV being on his property, but was told by Mr. Morrison’s father that he had no place to store it. Mr. Bedrosian indicated that Mr. Morrison would occasionally drive it around the backyard in circles or into the wooded area, but that Mr. Morrison’s father promised Mr. Bedrosian that he would take Mr. Morrison to off-premises locations to ride it and, based on that proviso, Mr. Bedrosian allowed the ATV to be stored on his property. Mr. Bedrosian testified that Mr. Morrison was forbidden from operating it if he or Carmela Morrison were not home.

Regarding the date in question, Mr. Bedrosian testified that he was told by Carmela Morrison, Mr. Morrison, and Tony Yacende that Mr. Marino was the driver of the ATV at the time and that Mr. Morrison was the passenger. Also, Mr. Bedrosian explained that no one was permitted to operate the ATV on the date in question because he had taken its only key and put it in a desk in his home office- a location that was “off limits to everybody.”

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 19 N.Y.S.3d 488 [2015]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Nomura, supra; see also Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (Daliendo v Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 [2d Dept 1989]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).

It is axiomatic that for a plaintiff to recover against a defendant in a negligence action, plaintiff must prove defendant owed plaintiff a duty and that the breach of that duty resulted in the injuries sustained by plaintiff (see Lugo v Brentwood Union Free School Dist, 212 A.D.2d 582, 622 N.Y.S.2d 553 [2d Dept 1995]; Kimbar v.Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197 [1956]).

“The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of die sport generally and flow from such participation” (Shivers v Elwood Union Free Sch. Dist, 109 A.D.3d 977, 978 [2d Dept 2013] [internal quotation omitted]; see Trupia v Lake George Cent. School Dist, 14 N.Y.3d 392, 901 N.Y.S.2d 127 [2010]; Morgan v State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421 [1997]). “A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law” (id at 978; see Leslie v. Splish Splash at Adventureland, 1 A.D.3d 320, 766 N.Y.S.2d 599 [2d Dept 2003]; Morgan v State of New York, supra). “It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Cruz v Longwood Cent Sch. Dist., 110 A.D.3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013] [internal quotation omitted]).

“There is … a duty by a parent to protect third parties from harm resulting from [his or her] infant child’s improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use” (Nolechek vGesuale, 46 N.Y.2d 332, 336, 413 N.Y.S.2d 340 [1978]), “Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments” (id. at 339). “In order for a third-party claim of this kind against a parent or guardian . . . negligence must be alleged and pleaded with some reasonable specificity, beyond mere generalities” (LaTorre v Genesee Mgmt, 90 N.Y.2d 576, 584, 665 N.Y.S.2d 1 [1997]).

Defendants Carmela Morrison and Richard Bedrosian, both relying on nearly identical arguments in support of their motions, have established a prima facie case of entitlement to summary judgment by offering sufficient proof that Mr. Marino voluntarily assumed die risks inherent in riding an ATV (see Shivers v Elwood Union Free Sch. Dist., supra; see generally Alvarez v Prospect Hosp., supra). Moving defendants proved that Mr. Marino voluntarily boarded the ATV, either as a driver or a passenger, having possessed significant prior experience with such machines. Further, there is nothing in the record indicating that Mr. Marino did not have full awareness of Mr. Morrison’s consumption of alcohol, if true, the weather and lighting conditions, and the landscaping of the backyard prior to riding on the ATV. Even if the Court were to assume, for the purposes of this decision, that Mr. Morrison’s consumption of alcohol, or some other factor, exceeded the level of risk Mr. Marino can be said to have assumed, plaintiffs have not proven the manner in which Mr. Marino allegedly sustained his injuries or even that Mr. Marino’s injuries were sustained on Mr. Bedrosian’s property. Accordingly, moving defendants, having established their entitlement to summary judgment on the ground of Mr. Marino’s primary assumption of the risk, the Court need not reach defendants’ other arguments.

Defendant having established a prima facie case entitlement to summary judgment, the burden shifted to plaintiff to raise an issue of fact necessitating a trial (see Alvarez v Prospect Hosp., supra). Plaintiffs argue that: (1) General Obligations Law § 9-103 does not apply to the facts of this case; (2) that enhanced risks were present at the time of Mr. Marino’s alleged injury, which he cannot be expected to assume; and (3) defendants owed a duty of care to Mr. Marino and failed to supervise him properly. In opposition, plaintiffs submit a copy of the Bill of Particulars and Michael Marino’s own affidavit.

Generally, “a plaintiff who suffers from amnesia as the result of the defendant’s conduct is not held to as high a degree of proof in establishing [his or her] right to recover for [his or her] injuries as a plaintiff who can describe the events in question” (Menekou v Crean, 222 A.D.2d 418, 419, 634 N.Y.S.2d 532 [2d Dept 1995]; Sawyer v Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 502 N.Y.S.2d 696 [1986]; Santiago v Quattrociocchi, 91 A.D.3d 747, 937 N.Y.S.2d 119 [2d Dept 2012]). However, in order to invoke that lower burden of proof, plaintiff must not only make a prima facie case, but must also submit an expert’s affidavit demonstrating the amnesia through clear and convincing evidence (Menekou v Crean, supra). Plaintiffs have failed to meet that burden here. Therefore, plaintiffs’ attempts to raise triable issues will be evaluated in the usual manner (see Alvarez v Prospect Hosp., supra).

As Richie Morrison, Tony Yacende, and Peter Frisina have not been deposed, the Court must decide this matter solely on the three deposition transcripts and single affidavit submitted by the parties herein. The undisputed facts can be summarized as follows: (I) Mr. Bedrosian owned the subject premises, but was unaware of Mr. Marino’s presence there at the time of the incident; (2) Mr. Marino, Mr. Morrison, and Mr. Yacende were unsupervised for a period of time on the evening in question; (3) Mr. Marino voluntarily rode on an ATV while not wearing protective equipment; (4) Mr. Marino was knocked unconscious at some point in the evening and awoke in a basement surrounded by friends and his father; (5) Mr. Marino was transported to the hospital via ambulance; (6) Peter Frisina sustained an injury while riding the subject ATV on an occasion prior to plaintiffs alleged injuries; and (7) Ms. Morrison and Mr. Bedrosian took the keys for the ATV away from Mr. Morrison and forbade Mr, Morrison using the ATV after Peter Frisina’s injury.

Here, plaintiffs rely almost entirely on hearsay not subject to any exception, in an attempt to raise triable issues. Any reference by plaintiffs’ counsel to “defective” brakes is unfounded and speculative (see Daliendo v Johnson, supra). Further, plaintiffs have failed to provide any proof as to the mechanism of Mr. Marino’s alleged injury (see Passaro v Bouquio, 79 A.D.3d 1114, 914 N.Y.S.2d 905 [2d Dept 2010]}. Based upon the admissible, non-hearsay evidence submitted, it is just as likely that Mr. Marino jumped from the moving ATV; took an uneventful ride on the ATV, then attempted to climb a tree and fell to the ground; or was hit in the head by some unknown object, causing him to become unconscious, as it is that the ATV crashed and he was thrown from it. Furthermore, the “dangerous instrument” exception is inapplicable here, as plaintiffs have not submitted evidence that movants gave Mr. Morrison permission to use the ATV or supplied him with access to it (see Nolechek v Gesuale, supra). Instead, uncontroverted evidence has been submitted that movants took affirmative steps to deny use of the ATV to Richie Morrison.

Accordingly, the motions by defendants Carmela Morrison and Richard Bedrosian for summary judgment in their favor dismissing the complaint against them is granted.


Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Scott Barth, Plaintiff,

v.

Blue Diamond, LLC (d/b/a Blue Diamond MX Park), a Delaware corporation, The East Coast Enduro Association, Inc., a New Jersey corporation, and Delaware Enduro Riders, Inc., a Delaware corporation, Defendants.

C.A. No. N15C-01-197MMJ

Superior Court of Delaware

November 29, 2017

Submitted: November 17, 2017

Motions for Summary Judgment on the Issue of Primary Assumption of Risk

Batholomew J. Dalton, Esq., Laura J. Simon, Esq., Dalton & Associates, Larry E. Coben, Esq. (Argued), Gregory S. Spizer, Esq., Anapol Weiss, Attorneys for Plaintiff Scott Barth

Michael J. Logullo, Esq. (Argued), Rawle & Henderson LLP Attorney for Defendants The East Coast Enduro Association, Inc. and Delaware Enduro Riders, Inc.

George T. Lees III, Esq., Logan & Petrone, LLC Attorney for Defendant Blue Diamond, LLC

OPINION

The Honorable Mary M. Johnston.

FACTUAL AND PROCEDURAL CONTEXT

In this Opinion, the Court considers an apparent issue of first impression in Delaware. The question is whether the doctrine of primary assumption of risk applies in certain risky or dangerous sports-related activities in the absence of an express waiver of liability. This is a personal injury case. The plaintiff, Scott Barth, suffered serious injuries during an off-road dirt-bike race. Barth alleges that the race’s course was owned by Defendant Blue Diamond, LLC (“Blue Diamond”), co-sponsored by Defendant Delaware Enduro Riders (“DER”), and overseen by Defendant East Coast Enduro Association, Inc. (“ECEA”). Barth alleges that the Defendants’ negligent and reckless failure to properly mark the race’s course caused his injuries. Prior to the race, Barth signed a release of liability form.

DER and ECEA filed a Motion for Partial Summary Judgment as to Barth’s allegations of recklessness, which Blue Diamond adopted. DER and ECEA also jointly filed a Motion for Summary Judgment, while Blue Diamond separately filed its own. At the hearing on the motions, this Court denied the Motion for Partial Summary Judgment, holding that genuine issues of material fact exist regarding recklessness, particularly as to, among others things, “the adequacy of signage” and “the adequacy of warnings on the course.”[1] The Court declined to rule from the bench as to the Motions for Summary Judgment, instead instructing the parties to make additional submissions limited to the issue of the doctrine of primary assumption of risk, the central grounds for the three defendants’ motions.

DER and ECEA argue they are entitled to summary judgment for two reasons. First, Barth signed a waiver releasing them from liability. Second, Barth assumed the risk inherent in an off-road dirt-bike race. In its separate motion, Blue Diamond makes the same two arguments and adds a third-Barth was a member of the Blue Diamond Riding Club, and Blue Diamond did not owe Barth the same duty it would owe a common law business invitee, MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is granted only if the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law.[2] All facts are viewed in a light most favorable to the non-moving party.[3] Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if there is a need to clarify the application of law to the specific circumstances.[4] When the facts permit a reasonable person to draw only one inference, the question becomes one for decision as a matter of law.[5] If the non- moving party bears the burden of proof at trial, yet “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, ” then summary judgment may be granted against that party.[6]

ANALYSIS

Defendants argue that they are entitled to summary judgment because Barth signed a release of liability and, separately, because Barth assumed the risk of participating in the race. Both of these arguments are properly analyzed within the framework of the doctrine of primary assumption of risk.

In Delaware, “primary assumption of the risk is implicated when the plaintiff expressly consents ‘to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.'”[7] When primary assumption of risk exists, “the defendant is relieved of legal duty to the plaintiff; and being under no legal duty, he or she cannot be charged with negligence.”[8]

The Waiver Form Released the Defendants from Liability for Negligence, not Recklessness

Defendants argue they are entitled to summary judgment under a theory of express primary assumption of risk. Before participating in the race, Barth signed a release titled, “RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” It states that Barth:

HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE . . . racing associations, sanctioning organizations … track operators, track owners … herein referred to as “Releasees, ” FROM ALL LIABILITY TO THE UNDERSIGNED . . . FOR ANY AND ALL LOSS OR DAMAGE . . . ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

Barth asserts that the entire waiver agreement is unenforceable as an invalid contract due to lack of consideration. He further contends that even if the agreement is enforceable, it does not release Defendants from liability for recklessness.

To be enforceable under Delaware law, releases of liability “must be crystal clear and unequivocal” and “unambiguous, not unconscionable, and not against public policy.”[9] Barth does not (and cannot) argue that the waiver form at issue does not meet this standard. In Lynam v. Blue Diamond LLC, this Court found a virtually identical release form valid.[10]

Barth instead argues that the form is unenforceable due to lack of consideration. Barth bases his argument on this Court’s finding in Devecchio v. Delaware Enduro Riders, Inc.[11] In Devecchio, this Court deemed a waiver of liability unenforceable due to lack of consideration when the form stated that riders agreed to inspect the course, but the defendants admitted that, under the race’s sanctioning body’s rules, the riders were not allowed to inspect the course before the race. [12]

As in Devecchio, the release here contains an agreement that the race participants “have or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS . . ., “[13] Unlike in Devecchio, however, no sanctioning body’s rule barred Defendants from performing an inspection of the course.

Instead, the rule in this case stated: “Participants are allowed to walk or bicycle the course prior to the event-with the club’s permission.” Barth argues that, despite this distinction, Devecchio should apply because Barth was never given permission or made aware of his responsibility to inspect the course. Notably, however, Barth never asked for permission to inspect the course. That Barth hypothetically may not have received permission to perform the inspection is not dispositive. Barth cannot claim he was denied permission if he never asked for it. Additionally, the “failure to apprise himself of, or otherwise understand the language of a release that he is asked to sign is insufficient as a matter of law to invalidate the release.”[14] The Court finds that Barth’s own failure to perform a permissive part of the agreement does not make the waiver invalid.

Pursuant to Lynam, however, the form exculpates the Defendants’ negligence, not recklessness. As in Lynam, the form here provides for a release of liability caused by “THE NEGLIGENCE OF THE ‘RELEASEES’ OR OTHERWISE.” As this Court determined in Lynam, “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[15]

The Court finds that the waiver form releases the defendants from their liability for negligence, but not for recklessness.

Implied Primary Assumption of Risk Does Not Bar a Claim of Recklessness

It is undisputed that primary assumption of risk applies when the plaintiff signs a valid release of liability form.[16] But because Defendants argue that primary assumption of risk exists in addition to and independent of the waiver form, the Court must determine whether-and if so, how-to apply the defense beyond an express written agreement to waive liability.

Delaware courts have noted, paradoxically, that “depending upon the situation at hand, express consent may be manifested by circumstantial words or conduct.”[17]The illogic of “express consent” being “manifested by circumstantial words or conduct” can be resolved with the conclusion that Delaware recognizes an implied primary assumption of risk doctrine.[18]

Case law suggests that courts should find an implied primary assumption of risk only with respect to certain activities. Delaware cases have noted that primary assumption of risk commonly applies to “sports-related activities that ‘involv[e] physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.'”[19] Examples of such sports-related activities include:

(1) being a spectator at a sporting event such as a baseball or hockey game or tennis match where projectiles may be launched into the audience; (2) participating in a contact sporting event; (3) bungee jumping or bungee bouncing; (4) operating a jet-ski, or engaging in other noncompetitive water sports such as water-skiing, tubing, or white-water rafting; (5) drag racing; and (6) skydiving.[20]

The nature of the activity is pertinent to an analysis of primary assumption of risk. Otherwise, in the absence of a waiver of liability, the dangerousness of the activity would be irrelevant. The case law therefore suggests that the doctrine of primary assumption of risk applies to certain sports-related activities, even in the absence of an express waiver form. However, though Delaware seems to allow for the application of implied assumption of risk in certain sporting events, no Delaware case has provided a framework for applying the doctrine. This precise issue appears to be one of first impression.

The California case Peart v. Ferro, [21] which this Court cited in support of its observations on the prevalence of primary assumption of risk in dangerous sporting events, [22] provides a means of analysis. Under the Peart framework, courts must examine two things to determine whether an implied primary assumption of risk exists: the nature of the activity and the relationship between the parties.[23]

When examining the nature of the activity, courts consider:

what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport.[24]

In examining the relationship of the parties, the court bears in mind that “the general duty of due care to avoid injury to others does not apply to coparticipants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.”[25]

When analyzed within this framework, implied primary assumption of risk remains distinct from secondary assumption of risk. Secondary assumption of risk has been subsumed by Delaware’s contributory negligence statute.[26] It is therefore no longer available as a complete defense. Secondary assumption of risk exists when “the plaintiffs conduct in encountering a known risk may itself be unreasonable, because the danger is out of proportion to the advantage which he is seeking to obtain.”[27] In contrast, the focus for implied primary assumption of risk remains on the nature of the activity the plaintiff has consented to participate in and the actions of the defendants-not how the conduct of the plaintiff may have contributed to his injuries. Commentators also have noted that implied primary assumption of risk is distinct from secondary assumption of risk.[28]

The Court finds that implied primary assumption of risk is a valid affirmative defense to negligence. Because Barth signed a valid release of liability for Defendants’ negligence, the remaining issue in this case is whether implied primary assumption of risk is a valid affirmative defense to allegations of recklessness as well.

Though defendants do not owe a duty to protect a plaintiff from the risks inherent in an activity to which the doctrine of implied primary assumption of risk applies, “defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.”[29]

Here, the Court has ruled as a matter of law that a genuine issue of material fact exists as to whether Defendants recklessly marked the course with inadequate signage. The Court finds there is a genuine issue of material fact as to whether the Defendants committed reckless conduct which increased the race’s risk of harm.[30] Further, the Court holds that the doctrine of implied primary assumption of risk does not insulate a tortfeasor from liability for intentional or reckless conduct. The Defendants’ Motions for Summary Judgment on this issue are denied.

Barth was a Business Invitee for the Race Despite his Blue Diamond Membership

Because Barth’s primary express and implied assumption of risk bar his claims of negligence, the Court need not reach this issue. However, for the sake of completeness, the Court finds that because Barth paid a fee to participate in the race, his relationship with Blue Diamond for the purposes of that event was that of a business invitee. His membership with the Blue Diamond Riding Club had no bearing on his participation in the race.

This fact distinguishes this case from Ketler v. PFPA, LLC, [31] upon which Blue Diamond relies. There, the plaintiff was a member of a fitness center and was injured while using a rowing machine. Because the fitness center was a “private-membership based business, ” the Court found the fitness center did not owe the plaintiff the same duty it “would owe to a common law business invitee or to the public at large.”[32]

In this case, participation in the race was not restricted to members of the Blue Diamond Riding Club. The race was open to any “American Motorcyclist Association Member.” Unlike the fitness center, Blue Diamond invited non-members to the race, and therefore owed participants the duties owed to business invitees.

CONCLUSION

The doctrine of implied primary assumption of risk does not insulate tortfeasors from liability for intentional or reckless conduct.

DER and ECEA’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against these defendants are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against these defendants, Blue Diamond’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against this defendant are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against this defendant. With the dismissal of the negligence allegations, the question of Blue Diamond’s status as a business invitee is moot.

IT IS SO ORDERED.

Notes:

[1] October 3, 2017 Tr. of Motions, 71:12-16.

[2] Super. Ct. Civ. R. 56(c).

[3] Burkhart v. Davies, 602 A.2d 56, 58-59 (Del. 1991).

[4] Super. Ct. Civ. R. 56(c).

[5] Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

[6] Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

[7] Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1080 (Del. 2014) (quoting Fell v. Zimath, 575 A.2d 267, 267-68 (Del. Super. 1989)).

[8] Id.

[9] Lynam v. Blue Diamond LLC, 2016 WL 5793725, at *3 (Del. Super.).

[10] See id. The release in Lynam read:

I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s). . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . .. FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED… BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.

[11] 2004 LEXIS 444 (Del. Super.).

[12] Id.

[13] The corresponding clause in Devecchio read:

EACH OF THE UNDERSIGNED . . . acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he come in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use ….

[14] Id. This principle also dispenses with the argument that Barth did not have sufficient time to understand the release that he chose to sign.

[15] Id. (quoting W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)).

[16] See Lafate v. New Castle Cty., 1999 WL 1241074 (Del. Super.) (analyzing whether a signed waiver constitutes primary assumption of risk).

[17] Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 882 (Del. Super. 2005) (citing Croom v. Pressley, 1994 WL 466013, at *5 (Del. Super. 1994)).

[18] See id. at 882 n.30 (‘”Primary assumption of risk is akin to express or implied consent… .'” (quoting 57B Am. Jur. 2d. Negligence § 1010)). Storm also quoted the Restatement (Second) of Torts at length to explain assumption of risk generally. Id. at 881. That passage described a form of assumption of risk “closely related to” that acquired through “express consent” as one in which:

the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff.

Id.; see also McCormick v. Hoddinott, 865 A.2d 523, 529 (Del. Super. 2004) (“In the instant case there appears to be no evidence to support a claim that minor Plaintiff expressly or impliedly assumed any risk; therefore, an affirmative defense of assumption of risk based on primary assumption of risk cannot stand.”) (emphasis added).

[19] Helm, 107 A.3d at 1080 (quoting Storm, 898 A.2d at 883).

[20] Storm, 898 A.2d at 883 (citations omitted). Storm noted, however, that a “common theme” of these activities is that they frequently involve the signing of consent forms, suggesting the Court may have only meant to invoke them as another example of where express consent may apply. Id. However, a “common theme” is not a “common requirement”-spectators at sporting events do not sign releases of liability to view an event. Moreover, courts have found waiver of liability forms enforceable in contexts dissimilar to those listed above. See, e.g., Ketler v. PFPA, LLC, 2015 WL 3540187, at *2 (Del. Super. 2015) (finding a waiver form sufficient to invoke primary assumption of risk when the plaintiff snapped a cable on a rowing machine at the defendant’s gym). The Storm Court would have had no occasion to comment on the nature of the activity if it were not independently meaningful in the analysis.

[21] 13 Cal.Rptr.3d 885, 894 (Cal.App. 4 Dist. 2004).

[22] See Storm, 898 A.2d at 883 (citing Peart to define the sort of sports-related activities that typically raise the issue of primary assumption of risk).

[23] Peart, 13 Cal.Rptr.3d at 894 (citations omitted).

[24] Id.

[25] Id. at 894-95.

[26] Helm, 107 A.3d at 1080 (“[I]t is now accepted in Delaware that the concept of secondary assumption of risk is completely subsumed by the principles of comparative negligence.”).

[27] Fell v. Zimath, 575 A.2d 267, 268 (Del. Super. 1989).

[28] See Restatement (Second) of Torts § 496A (1979) (distinguishing a description of implied primary assumption of risk from a secondary assumption of risk, “in which the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence”); 57B Am. Jur. 2d Negligence § 1010 (“Primary assumption of risk is akin to express or implied consent, and relieves the defendant of any obligation to exercise care for the injured person’s protection, including situations where an injured person, having knowledge of a hazard, continued voluntarily to encounter it. Secondary assumption of risk is akin to contributory negligence . . . .”).

[29] Peart, 13 Cal.Rptr.3d at 894.

[30] This conclusion is in line with Delaware decisions that applied similar logic under framework of a different name. See Farrell v. University of Delaware, 2009 WL 3309288, at *3 (Del. Super.) (finding persuasive the New York Supreme Court’s rationale that “[a]lthough [a] rink could not be liable for harms caused by the inherent dangers of skating or by unpreventable events, the court considered assumption of risk inapplicable to injuries resulting from ‘the reckless actions of another skater which the defendant, by adequate supervision, could have prevented.'”(quoting Shorten v. City of White Plains, 637 N.Y.S.2d 791, 796 (N.Y.App.Div.1996)); Lafate v. New Castle Cty., 1999 WL 1241074, at *4 (Del. Super. 1999) (denying summary judgment, in part because “it would not be within the normal expectation of the health risk of playing basketball that a supervising employee would place a metal bar within normal head range between two basketball courts” in spite of an express release of liability).

[31] 2015 WL 3540187 (Del. Super 2015).

[32] Id. at*l.


California decision imposes three specific requirements for a release to be valid. On requirement is a release must be understood by a person untrained in the law.

Lawsuit filed by family of deceased runner who died of cardiac arrest after crossing the finish line of a race. Release and assumption of the risk blocked all claims except the claim for gross negligence.

Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710

State: California, Court of Appeal of California, First Appellate District, Division Four

Plaintiff: Eden Gonzalez Hass et al

Defendant: Rhodyco Productions

Plaintiff Claims: negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed, trained, supervised and controlled emergency and medical resources.

Defendant Defenses: Release and Primary Assumption of the Risk

Holding: Split decision, however case to continue on issue of gross negligence

Year: 2018

Summary

This California Appellate decision added some new requirements for releases to be valid in California. Two of those new requirements stem from the requirements of the California wrongful death statute. The other two are simple.

Under California law, inherent is a limiting word when it is used to describe the risks in a release, and a release must be understandable by a non-lawyer.

Facts

The deceased, Peter Hass, crossed the finish line of the 2011 Kaiser Permanente San Francisco Half Marathon, suffered a cardiac arrest, collapsed and died. His wife and his two children, referred to as the Hess Family in the opinion, sued the event organizer for negligence.

Before entering the race, the deceased signed a release online.

Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” based on injuries he might suffer “at or enroute to and from this event

The race organizer had been putting on events for twenty-five year. This even had approval from the city which approval required providing an emergency management plan. The plan stated that a medical team and ambulance would be at the finish line and stationed on the course. The medical team the family argued was inadequate.

Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances.

The Hess family sued. Initially, the trial court granted the defendant RhodyCo’s motion for summary judgment based on the release and assumption of the risk. The family objected and argued in a hearing they should have the right to amend their complaint and bring additional claims. After the hearing, the trial court agreed and granted the Hess family’s motion for a new trial.

Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.

The defendant RhodyCo filed a notice of appeal, and the Hess family filed a notice of cross appeal bringing the matter to the California Court of Appeals, which issued the opinion here.

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

The appellate court first looked at the wrongful-death claim of the plaintiff Hess family. Under California law, a wrongful-death claim is not a derivative claim. Meaning the claim does not arise from a superior claim of the plaintiff. It is a claim, in and of itself, and not a claim of the deceased by a claim of the deceased’s family.

In other words, although a decedent cannot release or waive a subsequent wrongful-death claim by the decedent’s heirs, that decedents “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful-death action.

Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.

The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'” “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a subsequent wrongful death cause of action

For a release to block a wrongful-death claim, the language in the release, not the law of releases. Looking at the entire document, is it clear the parties expressed the intent to assume the risk, thus blocking the wrongful-death claim.

Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.

…in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.

The plaintiff Hess family argued the assumption of the risk language was insufficient to make that claim because the release used the term “inherent” to describe the risks. As such the risks that killed the deceased were not covered in the release.

The Hass Family, however, argues that the Release executed by Hass in this case is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks.

Again, the release used terms that limited the scope of the risks the deceased was to assume, which limited the breath of the release.

Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.

The court found that the language in other parts of the release were broad enough to cover the risks the deceased undertook and thus assumed.

Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence.

California also has a requirement that the “release should be understood as speaking to an ordinary person untrained in the law.” This requirement was argued stated twice in the decision.

A release under California law must be written so that an ordinary person untrained in the law can understand it.

The Hess family then argued the release was void because it violated public policy. The Hess Family claimed the defendants were negligent in providing the medical care that responded, and medical care is a necessity and as such should not be protected by a release.

The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”

California Civil code § 1668 does not allow a release to be sued to stop a claim if the service or the nature of the contract is based on public policy.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

There is a six-part test to determine if the agreement is one affecting the public interest. Not all six of the requirements must be met.

“‘[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'”

However, courts in California have declined to find releases used for recreational activities as violating the statute and thus being void because of the public interest argument.

Most recreational activities may require first aid or greater medical services. However, people do not engage in the sport or activity because of the first aid or medical issues. The first aid and medical issues are ancillary to the activity and as such not the main purpose for the activity or the release.

Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way.

The next issue was the issues of pleading the claim for gross negligence. California like most, if not all, other states do not allow a release to stop a gross negligence claim. If the Hess family is able to argue to the trier of fact that the actions of the defendant, RhodyCo rose to the level of gross negligence the release is not a defense.

Under California law, gross negligence is a want of even scant care.

…”‘[g]ross negligence’ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘[G]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'”

Normally, to appeal an issue or even argue an issue at the trial court level, you must first include the claim in your complaint or amend your complaint to bring a new issue in. The Hass family did not include any claim in their complaint for gross negligence.

However, the court found that there was no need in California to specifically plead gross negligence as it was part of negligence, sort of. The court never specifically stated why it was reviewing the gross negligence claim, only that other courts had found that it was not necessary to specifically plead gross negligence.

The court then found the plaintiff’s complaint, and arguments had raised enough issues that the plaintiffs might have a claim for gross negligence.

In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context.

Primary assumption of the risk was the final issue reviewed by the court. Primary assumption of the risk is a complete bar to negligence claims, including gross negligence claims because it removes any duty on the part of the defendant to the plaintiff. Meaning, the defendant cannot be negligent because they have not duty to the plaintiff.

Specifically, our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.”

When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.”

Primary assumption of risk arose out of sports and recreational activities so that the activities could be played with the intensity and vigor so that the reason, and sport of the game was not lost.

The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”

The issue then becomes what duty is owed by the defendant to the plaintiff that was not assumed by the plaintiff to the extent that it was then breached by the defendant.

Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family.

The court then stated that the organizer of the even does not have a duty to decrease the risk of any activity or event. However, there is a duty to minimize extrinsic risks.

While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.

The court reasoned this was a necessary departure from the encompassing defense provided by assumption of the risk to keep owners and organizers from avoiding “accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it.”

The court did not point out specific facts or risks that created the issue that the defendant RhodyCo had been grossly negligent.

The case was sent back to trial on the sole issue on whether or not the actions of the defendant were grossly negligent.

So Now What?

At the end of the decision, the court awarded costs to the Hess family. Costs on appeal are awarded to the winner of the appeal, in terms of overall and in terms of the number of claims. The defendant won all but one of the issues on appeal in this case. The only claim the defendant did not win was the plaintiffs did not plead gross negligence in their complaint, so they cannot argue it now.

Yet the court still awarded costs to the plaintiffs. It is only a guess, but does this indicate leaning in favor of the plaintiff’s in this case?

There are three specific takeaways from this decision affecting the law of California and releases.

1.    Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.

2.    Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.

3.    Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.

4.    A release under California law must be written so that an ordinary person untrained in the law can understand it.

The final issue to come out of this decision a new back door to defeating the primary assumption of the risk claim. Now if the risk is not enumerated in the release, the plaintiff is going to argue it is extrinsic and therefore, not covered by the doctrine of primary assumption of the risk to defeat the defense.

What do you think? Leave a comment.

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Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710

Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710

Hass v. RhodyCo Productions

Court of Appeal of California, First Appellate District, Division Four

August 13, 2018, Opinion Filed

2018 Cal. App. LEXIS 710 *; 2018 WL 3830002

EDEN GONZALEZ HASS et al., Plaintiffs and Appellants, v. RHODYCO PRODUCTIONS, Defendant and Appellant.

Prior History:  [*1] Superior Court of San Francisco of City and County, No. CGC-12-520492, A. James Robertson II, Judge.

Counsel: Lewis Brisbois Bisgaard & Smith LLP, Jeffry A. Miller, Lann G. McIntyre, Shawn A. Toliver, Helen L. Greenberg for Plaintiffs and Appellants.

Law Office of Gerald Clausen, Gerald Clausen, Abramson Smith Waldsmith LLP, Robert J. Waldsmith, Jeffrey R. Smith for Defendant and Respondent.

Judges: Opinion by Reardon, J., with Streeter, Acting P. J., and Smith, J.*, concurring.

Opinion by: Reardon, J.

Opinion

REARDON, J.—After crossing the finish line at the 2011 Kaiser Permanente San Francisco Half Marathon, Peter Hass (Hass) tragically suffered a cardiac arrest, collapsed, and died. Hass’s wife, Eden Gonzalez Hass, and his two minor children (collectively, the Hass Family) consequently filed this wrongful death action, alleging that numerous race-affiliated individuals and entities—including event organizer David Rhody, individually and doing business as RhodyCo Productions (RhodyCo)—were negligent in the organization and management of the race, particularly with respect to the provision of emergency medical services.1 The trial court initially granted RhodyCo’s summary judgment motion in this matter, concluding that the instant action was barred [*2]  under theories of primary assumption of the risk and express waiver. However, after the Hass Family filed a motion for new trial, the trial court reversed itself. Specifically, the court found that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend their complaint to plead gross negligence, conduct falling outside of the scope of the written waiver and release. On appeal, RhodyCo argues that the trial court’s initial grant of summary judgment was correct, even if the issue of gross negligence is considered on its merits. The Hass Family, in contrast, generally champions the court’s new trial order, but argues that the express release in this case was invalid on additional grounds rejected by the trial court and that the court should have concluded on the evidence before it that a triable issue of material fact exists as to RhodyCo’s gross negligence. We agree with the trial court that summary judgment was not warranted in this case based on primary assumption of the risk. However, we believe the trial court erred in requiring amendment of the complaint to plead gross negligence and determine, [*3]  based on our independent review of the record before us, that a triable issue of material fact exists on this issue. We therefore affirm in part and reverse in part, with instructions to enter a denial of RhodyCo’s summary judgment motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The annual Kaiser Permanente San Francisco Half Marathon & 5K Run in Golden Gate Park (Half Marathon) consists of two different events—a 13.1-mile half marathon and a five-kilometer run. In 2011, the anticipated attendance for the two races was estimated to include 10,000 participants and 600 volunteers. RhodyCo provided event management and production services for the Half Marathon from 2006 through 2011. In order to obtain the necessary temporary street closure permit for the event, RhodyCo was required to submit an emergency medical services plan (EMS Plan) to the City and County of San Francisco (City) for review and approval by the City’s emergency medical services agency (Agency).

The approved EMS Plan for 2011 stated, as it had in previous years, that the medical personnel at the Half Marathon would be provided by Palmer College of Chiropractic-West (PCCW) and American Medical Response (AMR). More specifically, [*4]  it asserted that PCCW would “‘provide event trained Medical Personnel for the event, (students are all CPR certified and have taken emergency response class). Med Teams will be located at key areas (Start Line, Finish Lines, Postrace Medical Tent, and mobile units on the course). The head clinician event day, Dr. Hal Rosenberg [phone number], will be onsite at the Postrace Medical Tent. AMR will provide an [emergency medical technician] who will be posted with PCCW Med Team in the postrace Medical Tent at the Finish of the race—AMR is also providing an ALS ambulance to respond [to] medical emergencies—the standby will be posted on Lincoln at the Great Hwy … . The Standby and Medical Team will be equipped with cellphone active Nextel radios with direct communication to the Event Coordinator and each other.'” Other portions of the approved EMS Plan, however, indicated that one M.D., 6+ EMTs, and one automatic external defibrillator (AED) would be located at the finish line.

Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” [*5]  based on injuries he might suffer “at or enroute to and from this event,” Hass participated in the Half Marathon on February 6, 2011. Almost immediately after crossing the finish line at 10:05:34 a.m., Hass suffered a sudden cardiac arrest and collapsed. Another runner, Dr. Charles Whitehill, crossed the finish line 13 seconds after Hass and heard him fall. Dr. Whitehill—who had significant experience in providing and overseeing resuscitation efforts for patients—began to perform cardiopulmonary resuscitation (CPR) on Hass within 30 to 60 seconds of arriving at Hass’s side. Dr. Whitehill was involved in CPR efforts for five to eight minutes, after which CPR was continued by another bystander who identified himself as an off-duty paramedic. Approximately 11 minutes after Hass collapsed a third bystander brought the AED from the postrace tent, which was located somewhere between 100 and 200 yards beyond the finish line. When the AED was applied, it showed that Hass had no shockable heart rhythm. CPR efforts were then continued until paramedics from the City’s fire department arrived at approximately 10:31 a.m. and took over treatment. Unfortunately, Hass was pronounced dead shortly thereafter [*6]  at 10:49 a.m. RhodyCo has provided event management and production services for over 25 years, including at least 400 running, walking, and other events involving over 1.5 million participants. Hass’s tragic death was the only fatality ever experienced at a RhodyCo-managed event.

On May 3, 2012, the Hass Family filed this wrongful death action (Complaint), alleging, among other things, that RhodyCo had negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed, trained, supervised and controlled emergency and medical resources.” In particular, the Hass Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances. RhodyCo answered, generally denying the Complaint allegations and asserting several affirmative defenses, including primary assumption of the risk and express contractual assumption of the risk and release of liability.

RhodyCo then filed a motion for summary judgment, arguing [*7]  that the Hass Family’s wrongful death action was completely barred based on the two aforementioned affirmative defenses. Specifically, RhodyCo claimed that Hass had agreed to be bound by the Release when he registered for the Half Marathon, which included a waiver of liability and assumption of the risk agreement that was binding on his heirs. In addition, RhodyCo asserted that sudden cardiac arrest is an inherent risk of long-distance running and that it had done nothing to increase this risk. Under these circumstances, RhodyCo opined, the Hass Family’s action was barred under the primary assumption of the risk doctrine.

In opposition to the summary judgment motion, the Hass Family argued with respect to the Release that it was void to the extent it purported to cover emergency medical services, as such services implicate the public interest; that it was not a clear and unambiguous waiver of future liability for a wrongful death claim; and that it was ineffective to exempt RhodyCo from liability for gross negligence. With respect to the doctrine of primary assumption of the risk, the Hass Family agreed that cardiac arrest is an inherent risk of long-distance running, but argued that [*8]  a sponsoring entity is nevertheless obligated to take reasonable steps to minimize inherent risks to the extent it is able to do so without altering the nature of the sport. They further maintained that RhodyCo had increased the risk of death beyond that inherent in the sport by failing to comply with the EMS Plan.

On the issue of negligence, the Hass Family presented evidence indicating that medical emergencies (including cardiac arrests) are more likely to occur near the finish line of a race because runners tend to push themselves to improve their times, causing an adrenaline rush and an arrhythmia. Moreover, as the City, itself, has recognized: “[C]losing off several major streets at the same time to accommodate a race often causes … potential interference with emergency services.” (San Francisco Transportation Code, § 6.11, subd. (a).) The Hass Family argued that, although RhodyCo’s EMS Plan for the Half Marathon properly identified the finish line as a “‘key area'” and indicated numerous resources would be stationed there—including a medical doctor, AED, and “6+” EMTs—the only medical personnel assigned to the finish line were Dr. Rosenberg (a chiropractor) and the event coordinator (a chiropractic [*9]  student), neither of whom were actually at the finish line when Hass collapsed. They further claimed that the AED was in the medical tent located approximately 200 yards away, in the postrace expo area; that no event medical personnel arrived at the scene until 10 minutes after Hass collapsed; and that, when a bystander arrived with the AED at the 11-minute mark, it was too late to help Hass. The Hass Family also found fault with the communications equipment provided by RhodyCo for the Half Marathon. Although the EMS Plan represented that “all event safety personnel” would have “cell phone active radios,” the Hass Family averred that only six or seven radios were provided to the medical team; that no radio was provided to the ambulance or to either chiropractic doctor onsite; and that there was no radio in the medical tent. Finally, the Hass Family presented declarations from several experts indicating that the standard of care for an event like the Half Marathon is to have a competent medical director who is a medical doctor and to follow the medical plan. Moreover, according to one of the Hass Family’s experts, because races like the Half Marathon can disrupt the local 911 system, [*10]  the standard of care additionally requires enough onsite ambulances (and/or backfilling of ambulances) to provide for rapid medical care for runners who collapse due to sudden cardiac arrest, particularly near the finish line.2

As stated above, the trial court initially granted RhodyCo’s summary judgment motion, concluding that the Hass Family’s wrongful death action was barred under theories of primary assumption of the risk and express waiver. The Hass Family then filed a motion for new trial, arguing that the trial court had erred in its legal analysis of the primary assumption of the risk doctrine. In addition, they asserted that all of the trial court’s conclusions with respect to the Release were erroneous. In particular, they argued that they were not required to plead gross negligence in the Complaint and that, in any event, it was an abuse of discretion to deny their request to amend the Complaint to cure any such perceived defect. The Hass Family also provided new evidence that they alleged supported finding a triable issue with respect to gross negligence—the deposition testimony of Dr. Brown, the head of the Agency, stating that nothing in the EMS Plan indicated [*11]  that chiropractic students would be substituted for EMTs at the finish line and that his discussions with RhodyCo regarding the use of chiropractic students was limited to their use on the mobile teams. Dr. Brown also testified that he had never discussed with RhodyCo the propriety of substituting a chiropractic doctor for a medical doctor as race supervisor. RhodyCo opposed the motion for new trial, arguing that the trial court’s initial decision was correct under the law; that Dr. Brown’s deposition testimony should not be considered as the Hass Family had not acted with diligence in producing it; and that, regardless, the statements from the deposition highlighted by the Hass Family were undercut by other deposition testimony.

After hearing, the trial court granted the Hass Family’s new trial motion. Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did [*12]  reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.

RhodyCo’s notice of appeal and the Hass Family’s notice of cross-appeal now bring the matter before this court.

II. DISCUSSION

A. Standard of Review

CA(1)[] (1) As described above, the procedural posture of this case is somewhat convoluted. Although the trial court initially granted RhodyCo’s summary judgment motion, it subsequently reversed itself on one ground (primary assumption of the risk) and then deferred ruling on another ground it had previously rejected (gross negligence) pending amendment of the Complaint, effectively granting a new trial on both issues. HN1[] Such an order is appealable. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 [107 Cal. Rptr. 2d 841, 24 P.3d 493] (Aguilar) [noting, in finding appealability under similar circumstances, that it “makes no difference” that an order granting a new trial following an order granting summary judgment “may operate like an order denying summary judgment, which is nonappealable”].) Further, HN2[] although orders granting a new trial are generally examined for abuse of discretion, any determination underlying the new trial order is scrutinized using “the test appropriate for that determination.” (Douglas v. Fidelity National Ins. Co. (2014) 229 Cal.App.4th 392, 407 [177 Cal. Rptr. 3d 271]; see also Aguilar, supra, 25 Cal.4th at pp. 859–860.)

Here, then, [*13]  the trial court’s conclusions with respect to the appropriateness of summary judgment are subject to our de novo review. (Aguilar, supra, 25 Cal.4th at p. 860; In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150 [204 Cal. Rptr. 3d 330] (Automobile Antitrust Cases).) In this regard, we review the trial court’s ruling; not its rationale. (Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 150.) “Thus, ‘[t]he sole question properly before us on review of the summary judgment [order] is whether the judge reached the right result … whatever path he [or she] might have taken to get there.'” (Id. at pp. 150–151.)

CA(2)[] (2) Moreover, HN3[] the underlying issues implicated by RhodyCo’s summary judgment motion are also subject to our independent review. For instance, HN4[] “‘[c]ontract principles apply when interpreting a release, and “normally the meaning of contract language, including a release, is a legal question.” [Citation.] “Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, ‘construction of the instrument is a question of law, and the appellate court will independently construe the writing.'”‘” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483 [72 Cal. Rptr. 3d 471] (Cohen); see also Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754–755 [29 Cal. Rptr. 2d 177] (Paralift).) CA(3)[] (3) Similarly, it has long been recognized that HN5[] application of the primary assumption of the risk doctrine is a legal question, to be determined by the courts as a matter of law. (See Kahn, supra, 31 Cal.4th at pp. 1003–1004; see also Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 257 [179 Cal. Rptr. 3d 473] [“‘[T]he legal question of duty, [*14]  and specifically the question of whether a particular risk is an inherent part of a sport, “is necessarily reached from the common knowledge of judges, and not the opinions of experts”‘”].) In our resolution of this matter, then, we are writing on what is essentially a clean slate, bearing in mind that HN6[] we should resolve any evidentiary doubts in the Hass Family’s favor, given that they are the party opposing summary judgment. (Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 151 [“In undertaking our analysis, we ‘”accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.”‘”].)

B. Express Waiver

During the online registration process for the Half Marathon, Hass was presented with the following warning regarding his need to execute the Release: “Please read any waiver carefully. It includes a release of liability and waiver of legal rights and deprives you of the ability to sue certain parties. Do not agree to this document unless you have read and understood it in its entirety. By agreeing electronically, you acknowledge that you have both read and understood all text presented to you as part of the registration process. You also understand and agree [*15]  that events carry certain inherent dangers and risks which may not be readily foreseeable, including without limitation personal injury, property damage, or death. Your ability to participate in the event(s) is/are subject to your agreement to the waiver and by agreeing herein, you accept and agree to the terms of the waiver and release agreement.” (Italics added.) The document referenced in this warning—which could either be printed out or read in its entirety online—is entitled “Waivers” and reads in pertinent part as follows: “I understand that by registering I have accepted and agreed to the waiver and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understand any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event. [¶] In consideration [*16]  of your accepting this entry … , I, intending to be legally bound, do hereby for myself, my heirs, executors, and/or administrators, waive and release any and all claims for damages I may accrue against … RhodyCo … any and all contractors, their employees, representatives, agents and heirs from any and all injuries that may be suffered by me at or enroute to or from this event. I attest that I am physically fit and sufficiently trained for this strenuous competition. I will assume my own medical and emergency expenses in the event of an accident or other incapacity or injury resulting from or occurring in my participation. …” (Italics added.)3

As stated above, RhodyCo argued in its summary judgment motion that the Release signed by Hass acted as a complete bar to the instant action. The trial court initially agreed, rejecting the Hass Family’s arguments that the wording of the Release was insufficient to exempt RhodyCo from wrongful death claims and that the Release was void on public policy grounds. In addition, because gross negligence was not specifically alleged in the Complaint, the court refused to consider the Hass Family’s third argument—that RhodyCo [*17]  had engaged in gross negligence falling outside of the scope of the Release. However, the trial court later granted a new trial on this issue, stating it would allow the Hass Family to amend its Complaint to cure this defect. The court declined to determine whether a triable issue as to RhodyCo’s alleged gross negligence existed, pending the filing of the amendment. In this appeal and cross-appeal, the parties raise all three of these issues involving the impact of the executed Release as potential grounds either supporting or undermining the trial court’s summary judgment decision. We therefore address each contention in turn.

1. Waiver of Wrongful Death Claim

CA(4)[] (4) Our high court has explained that HN7[] wrongful death claims “are not derivative claims but are independent actions accruing to a decedent’s heirs.” (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841 [114 Cal. Rptr. 3d 263, 237 P.3d 584]; see also Madison v. Superior Court (1988) 203 Cal.App.3d 589, 596 [250 Cal. Rptr. 299] (Madison) [“‘The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'”].) “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a [*18]  subsequent wrongful death cause of action … .” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 725 [183 Cal. Rptr. 3d 234].) Rather, a distinction is made in these circumstances “between the legal ineffectiveness of a decedent’s preinjury release of his [or her] heirs'[] subsequent wrongful death action and the legal effectiveness of an express release of negligence by a decedent which provides a defendant with ‘a complete defense.‘” (Madison, supra, 203 Cal.App.3d at p. 597.) In other words, although a decedent cannot release or waive a subsequent wrongful death claim by the decedent’s heirs, that decedent’s “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful death action. (Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 763–764 [276 Cal. Rptr. 672] (Saenz); see also Ruiz, supra, 50 Cal.4th at pp. 851–852 [“although an individual involved in a dangerous activity cannot by signing a release extinguish his [or her] heirs’ wrongful death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk”].) Under such circumstances, the releasor is essentially agreeing not to expect the other party to act carefully, thus eliminating that person’s duty of care. (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7 [236 Cal. Rptr. 181] (Coates).)

As an example, in Coates, supra, 191 Cal.App.3d 1, the decedent, a dirtbike rider, signed a release before using the defendant’s motorcycle park. (Id. at pp. 3–4.) After [*19]  the decedent was fatally injured, his heirs sued, arguing that the defendant had been negligent in the design and maintenance of the trail on which the decedent was hurt. (Ibid.) The appellate court agreed with the trial court that the decedent’s release barred the subsequent wrongful death action. Specifically, the court noted that, in the first half of the release, the decedent “expressly waived liability for injuries or death which might result from respondents’ ordinary negligence in the future. In the second half, he expressly assumed all risk of injury from dangers inherent in dirtbike riding on respondents’ premises.” (Id. at p. 7; see also id. at p. 4 & fn. 2.) The court concluded that this express assumption of the risk also bound the decedent’s heirs. (Id. at p. 8.) The court additionally opined that whether or not the decedent had “sufficient knowledge of the particular risk which resulted in his death” was irrelevant under the circumstances of the case because “knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk.” (Id. at pp. 8–9.)

CA(5)[] (5) Our own decision in Saenz, supra, 226 Cal.App.3d 758 is in accord. There, the decedent fell out of a raft on a white-water rafting trip hosted by Whitewater, a commercial rafting [*20]  company, and drowned. (Id. at pp. 759, 762.) Prior to this fatal incident, the decedent had signed a release, stating: “‘I am aware that certain risks and dangers may occur on any river trip with Whitewater … . These risks include, but are not limited to, hazards of and injury to person and property while traveling in rafts on the river, accident or illness in remote places without medical facilities, the forces of nature … . [¶] … I hereby assume all of the above risks and, except in the case of gross negligence, will hold Whitewater … harmless from any and all liability, actions, causes of action, debts, claims, and demands of every kind and nature whatsoever which I now have or which may arise out of or in connection with my trip or participation in any activities with Whitewater … .’ The agreement further stated it operated as a release and assumption of risk for his heirs.” (Id. at p. 763, fn. 7, italics added.) Noting that “drafting a legally valid release is no easy task,” we opined that HN8[] “‘[t]o be effective, a release need not achieve perfection … . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.'” [*21]  (Id. at p. 765.) Given that the plain language of the Saenz release indicated that the decedent consented to assume the risks associated with white-water rafting and release Whitewater from any and all liability arising out of the trip, the fact that the exculpatory sentence did not explicitly state that it covered Whitewater’s negligence and did not specifically mention death or drowning was insufficient to invalidate the otherwise clear release. (Id. at pp. 765–766; see also Cohen, supra, 159 Cal.App.4th at p. 1485 [“‘If a release of all liability is given, the release applies to any negligence of the defendant.'” (italics added)].)

Indeed, generally speaking, “‘[w]hether a release bars recovery against a negligent party “turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.”‘” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 66–67 [79 Cal. Rptr. 2d 902].) Moreover, in this regard, “‘[o]ur analysis is not based on the mechanical application of some formula. The presence or absence of the words “negligence” or “bodily injury” is not dispositive. We look instead to the intention of the parties as it appears in the release forms before the court.'” (Id. at p. 67; see also Cohen, supra, 159 Cal.App.4th at p. 1488
[noting that release should be understood as speaking to an ordinary person untrained in the law].) By [*22]  signing the Release in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.

The Hass Family, however, argues that the Release executed by Hass in this case is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks. They further contend that the release language contained in the next sentence of the Release is similarly ineffectual in the wrongful death context because it is limited to “any and all claims for damages I [i.e., Hass] may accrue,” thus excluding claims accrued by his heirs. We are not persuaded.

HN9[] CA(6)[] (6) “With [*23]  respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen, supra, 159 Cal.App.4th at p. 1484.) Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence. In particular, and as we remarked in Saenz (also a wrongful death action), we believe that the juxtaposition of the assumption of risk language and the blanket release language conveys the message that Hass assumed all risks related to participation in the Half Marathon while excusing RhodyCo from any liability arising from the race. (See Paralift, supra, 23 Cal.App.4th at pp. 756–757 [considering broad release language as well as assumption language in upholding release in wrongful death action]; Saenz, supra, 226 Cal.App.3d at p. 765 [same]; Coates, supra, 191 Cal.App.3d at pp. 7, 9 & fn. 2 [release valid where decedent waived all liability for injury or death and assumed risk of injury from dangers inherent in riding dirt bike on premises]; see also National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 937–938, 940 [264 Cal. Rptr. 44] (Street Racers) [in case claiming lack of competent medical [*24]  attention/rescue equipment, release is valid even though it included an assumption of “‘all risk inherent in racing'” because it also released “in unqualified terms … all claims arising from plaintiff’s participation in the race”].)4

We similarly reject the Hass Family’s assertion that the assumption of risk language used in the Release—I “accept the inherent dangers and risks … that arise from participation in the event”—is ambiguous as “accept” in this context could reasonably mean “understand” as well as “assume.” (See Cohen, supra, 159 Cal.App.4th at p. 1485 [an ambiguity in a release exists when a party can identify an alternative, semantically reasonable, candidate of meaning; an ambiguity “‘should normally be construed against the drafter'” of the release].) The complete sentence at issue reads: “By agreeing electronically, I have acknowledged that I have both read and understand any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from [*25]  participation in the event.” (Italics added.) Since the signator, in the first part of the sentence, has already acknowledged understanding the contents of the waiver—which includes the statement that there are risks inherent in participating—it seems unlikely that he or she would be asked to acknowledge such an understanding a second time in the latter part of the sentence. Rather, the much more reasonable interpretation of this second clause is that the signator is agreeing to shoulder—i.e., take on or otherwise assume—the dangers and risks inherent in the activity.

Finally, in construing the Release, we are cognizant of the fact that “[i]n cases arising from hazardous recreational pursuits, to permit released claims to be brought to trial defeats the purpose for which releases are requested and given, regardless of which party ultimately wins the verdict. Defense costs are devastating. Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” (Street Racers, supra, 215 Cal.App.3d at p. 938.) While certainly imperfect, we believe that the Release was intended to be, and was accepted as, a comprehensive assumption of all risks associated [*26]  with race participation. We therefore agree with the trial court that the Release constitutes a complete defense to a wrongful death action based on ordinary negligence.

2. Public Policy

CA(7)[] (7) The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
HN10[] A contractual provision exculpating a party from liability is invalid under this statute if it “affects the public interest.” (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96, 98 [32 Cal. Rptr. 33, 383 P.2d 441] (Tunkl).)

CA(8)[] (8) In Tunkl, supra, 60 Cal.2d 92, HN11[] our high court identified six characteristics typical of contracts affecting the public interest: “‘[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [*27]  a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'” (Id. at pp. 98–101, fns. omitted.) Not all of these factors need to be present for an exculpatory contract to be voided as affecting the public interest. (Id. at p. 98.) However, in Tunkl, the Supreme Court found all six factors were implicated and, on that basis, concluded that a release from liability [*28]  for future negligence imposed as a condition for admission to a charitable research hospital affected the public interest and was thus invalid. (Id. at pp. 94, 101–102.) In making this determination, our high court found “hardly open to question” the fact that “the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity.” (Id. at p. 101.)

In contrast, California courts have consistently declined to apply the Tunkl factors to invalidate exculpatory agreements in the recreational sports context. (See Street Racers, supra, 215 Cal.App.3d 934 [upholding release in case claiming lack of competent medical attention/rescue equipment]; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [128 Cal. Rptr. 2d 885] [fall from chairlift during ski lesson]; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 161–162 [21 Cal. Rptr. 2d 245] [swim class]; Paralift, supra, 23 Cal.App.4th at p. 756 [skydiving]; Saenz, supra, 226 Cal.App.3d at p. 764 [commercial river rafting]; Madison, supra, 203 Cal.App.3d at pp. 593, 597–599 [scuba diving]; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1464, 1466–1468 [231 Cal. Rptr. 429] [bicycle race].) Although they acknowledge the current state of California law, the Hass Family invites us to revisit the issue based on an analysis of the Tunkl factors by the Washington Supreme Court in Vodopest v. MacGregor (1996) 128 Wn.2d 840 [913 P.2d 779] (Vodopest). In that case, the plaintiff agreed to join a mountain trek that was designed as a research trip to test the efficacy of a breathing technique used to eliminate high altitude [*29]  sickness. (Id. at pp. 843–844.) Portions of the research proposal were submitted to the University of Washington Human Subjects Review Committee (University) for approval. (Id. at p. 845.) Prior to the trek, the plaintiff executed a broad release in researcher MacGregor’s favor. (Ibid.) A similar release which included the University was rejected by the University as invalid because “releases from liability for negligence are not allowed as a part of any approved study, as the federal government does not allow exculpatory language in human subject experimentation.” (Id. at p. 846.) Ultimately, the plaintiff suffered a cerebral edema from altitude sickness on the trek and sued MacGregor for negligence and gross negligence. (Id. at p. 847.)

The sole issue on appeal in Vodopest was whether the release signed by the plaintiff violated public policy and was thus unenforceable. (Vodopest, supra, 128 Wn.2d at p. 848.) The court noted that medical research was a significant component of the trek and that the “critical question” in the case was “whether the alleged conduct giving rise to the cause of action for negligence occurred in the context of the mountain trekking or within the scope of the research project.” (Id. at pp. 850, 852–853.) It concluded—after consideration of the six Tunkl factors—that to [*30]  the extent MacGregor attempted to use the release “to release herself as a researcher from negligent acts performed in the furtherance of medical research,” it was unenforceable as violative of public policy. (Id. at p. 853; see id. at pp. 853–862.) In particular, the court opined that “there are critical public policy reasons to maintain the usual standard of care in settings where one person is using another as a medical research subject.” (Id. at p. 856.)

CA(9)[] (9) Vodopest is obviously distinguishable on its facts and we reject the Hass Family’s invitation to depart from long-existing California precedent based on this Washington decision. HN12[] Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way. (Cf. Okura, supra, 186 Cal.App.3d at p. 1468 [bicycle race participant retains complete control and can drop out of the race or [*31]  adjust his pace at any time; organizers have no control over how the participant approaches the race].) The Tunkl court, itself, made clear that such private, voluntary exculpatory contracts are permissible: “While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances [admission to research hospital] pose a different situation. In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer.” (Tunkl, supra, 60 Cal.2d at p. 101.) Here, Hass was permitted to make the voluntary decision, in return for being allowed to participate in the race, to shoulder the risk of RhodyCo’s potential negligence. “‘”‘The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and … should be exercised only in cases free from doubt.'”‘” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, fn. 53 [62 Cal. Rptr. 3d 527, 161 P.3d 1095] (Santa Barbara).) We decline to exercise it here.

3. Gross Negligence

CA(10)[] (10) The final issue with respect to the impact [*32]  of the Release in this matter is whether the Hass Family has raised a triable issue of material fact as to whether RhodyCo acted with gross negligence in its management of the Half Marathon. Even if the Release was sufficient to block a claim for ordinary negligence—as we have held—HN13[] it is insufficient, as a matter of public policy, to preclude liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 751 [“an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy”].) For purposes of this distinction, ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (Id. at pp. 753–754.) “‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,'” amounts to ordinary negligence. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48 [135 Cal.Rptr. 761].) In contrast, “‘[g]ross negligence‘ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘” (Santa Barbara, supra, 41 Cal.4th at p. 754.) “‘“[G]ross negligence” falls short of a reckless disregard of consequences, [*33]  and differs from ordinary negligence only in degree, and not in kind.‘” (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197 [167 Cal. Rptr. 881]; see also Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881 [208 Cal. Rptr. 3d 792].) In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'” (Gore, supra, 110 Cal.App.3d at p. 198.)

CA(11)[] (11) In the present case, we agree with both parties that the trial court erred by refusing to consider the Hass Family’s claim of gross negligence because they had not pled gross negligence in their Complaint. Several appellate courts have opined that California does not recognize a separate cause of action for gross negligence. (Saenz, supra, 226 Cal.App.3d at p. 766, fn. 9; Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 108, fn. 5 [243 Cal. Rptr. 536], disapproved on other grounds in Knight v. Jewett (1992) 3 Cal.4th 296, 306–309 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) In Santa Barbara, the Supreme Court did not definitively resolve this issue, commenting only that it did not view its holding invalidating releases for future gross negligence “as recognizing a cause of action for gross negligence.” (Santa Barbara, supra, 41 Cal.4th at pp. 779–780.) Instead, as is more relevant here, the high court went on to declare: “Our holding simply imposes a limitation on the defense that is provided by a release. HN14[] A plaintiff is not required to anticipate such a defense [citation]; [*34]  instead, the defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.” (Id. at 780, fn. 58.) Thus, regardless of whether gross negligence can be a separate cause of action, and/or the Hass Family could have alleged gross negligence in the Complaint in anticipation of RhodyCo’s likely defense, they were not required to do so. The consequences of this pleading decision in the context of a summary judgment motion were summarized in Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal.Rptr.2d 781]—which involved alleged negligence by a ski rental company in the adjustment of ski bindings—as follows: “Had plaintiff anticipated the defense of the release agreement in his complaint and alleged facts suggesting [its invalidity], the matter would have been a material issue which defendants would have had to refute in order to obtain summary adjudication.” (Id. at pp. 1723–1724, 1739–1740; see also id. at p. 1740 [“‘If … the plaintiff pleads several theories or anticipates affirmative defenses by a show of excusing events or conditions, the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is [*35]  to be successful'”].) In contrast, “[s]ince plaintiff’s complaint said nothing about the agreement, the matter of [its validity] was not a material issue for purposes of defendants’ initial showing on its motion for summary adjudication. [The defendant] met its initial burden by adducing evidence of the … agreement and plaintiff’s execution. The burden thereafter shifted to plaintiff to raise a triable issue of material fact.” (Id. at p. 1740.)

Similarly, here, although the Hass Family set forth certain facts in the Complaint which could be viewed as supporting a claim of gross negligence, it cannot be said that the Complaint—which does not even mention the Release—anticipated the Release defense or raised gross negligence as a material issue which RhodyCo was required to refute in order to succeed on summary judgment. Instead, RhodyCo met its initial burden by producing evidence of the existence of the Release and its execution by Hass. The burden then shifted to the Hass Family to raise a triable issue of material fact as to gross negligence.

CA(12)[] (12) Viewing the evidence in the light most favorable to the Hass Family, we believe they have met their burden in this case, making summary judgment inappropriate. [*36] 5
It is true that HN15[] summary judgment on the issue of gross negligence may be warranted where the facts fail to establish an extreme departure from the ordinary standard of care as a matter of law. However, “[g]enerally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence.” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal. Rptr. 356].) In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context. We conclude only that, viewing the evidence in the light most favorable to them, it is possible that the Hass Family could establish that, despite the potential for grave risk of harm in the sport of long-distance running, RhodyCo failed to implement the EMS Plan in several [*37]  material ways and that its management of the Half Marathon—in particular with respect to the allocation of medical resources to the finish line and communication among race personnel—constituted an extreme departure from the standard of care for events of its type. This is sufficient to raise a triable issue of fact with respect to gross negligence.
6

In sum, we have concluded that the Release is not void on public policy grounds and that it is adequate to bar the Hass Family’s action for ordinary negligence. However, since we have additionally determined that a triable issue of material fact exists as to whether RhodyCo’s provision of emergency medical services was grossly negligent, the trial court’s new trial order reversing its initial grant of summary judgment was appropriate, unless the Hass Family’s negligence action is completely barred by the doctrine of primary assumption of the risk. We therefore turn finally to that question.

C. Primary Assumption of the Risk

CA(13)[] (13) In Knight, supra, 3 Cal.4th 296, the Supreme Court considered the continued applicability of the assumption of the risk doctrine in light of the court’s prior adoption of comparative fault principles. (Id. at pp. 299–300.) Specifically, [*38]  HN16[] our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of
risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” (Id. at p. 308.) When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.” (Id. at p. 315.) In contrast, secondary assumption of the risk “is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” (Ibid.; id. at p. 314 [“a jury in a ‘secondary assumption of risk’ case would be entitled to take into consideration a plaintiff’s voluntary action in choosing to engage in an unusually risky sport … in determining whether the plaintiff properly should bear some share of responsibility for the injuries he or she suffered”]; see also Kahn, supra, 31 Cal.4th at p. 1003 [in a secondary assumption [*39]  of the risk case, “the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence“].)

CA(14)[] (14) The Supreme Court further concluded in Knight that HN17[] “the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm … [turns] on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” (Knight, supra, 3 Cal.4th at p. 309.) Although Knight dealt with the duty owed by a coparticipant in recreational activity (an informal touch football game on Super Bowl Sunday), it also discussed the potential liability here at issue, that of operators and organizers of recreational events. (Id. at pp. 300–301, 315–317.) For instance, the Knight court opined: “In the sports setting … conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.] … [¶] Although defendants generally [*40]  have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.” (Id. at pp. 315–316, italics added.) The high court also cited with approval a case involving an injury from a thrown baseball bat in which the jury returned a verdict in favor of the baseball player (since throwing bats is inherent in the game), but implicitly recognized “the duty of the stadium owner to provide a reasonably safe stadium with regard to the relatively common (but particularly dangerous) hazard of a thrown bat.” (Id. at p. 317.) Finally, Knight acknowledged a line of cases in which the duty of an operator is defined “by reference to the steps the [*41]  sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.” (Id. at p. 317.)

CA(15)[] (15) Twenty years later, in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148 [150 Cal. Rptr. 3d 551, 290 P.3d 1158] (Nalwa), the Supreme Court revisited the scope of the primary assumption of the risk doctrine in the specific context of the duty owed by an operator/organizer. The Nalwa court summarized the doctrine as follows: HN18[] “‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.] Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Id. at p. 1154.) Applying this analytical framework to the case at hand, the high court concluded that the operator of a bumper car ride at an amusement park had [*42]  no duty to protect the plaintiff from the collision which fractured her wrist. (Id. at pp. 1152, 1157–1158, 1162–1163.) Rather, “[l]ow-speed collisions between the padded, independently operated cars are inherent in—are the whole point of—a bumper car ride.” (Id. at p. 1157.) Thus, “‘[i]mposing liability would have the likely effect of the amusement park either eliminating the ride altogether or altering its character to such a degree—by, for example, significantly decreasing the speed at which the minicars could operate—that the fun of bumping would be eliminated, thereby discouraging patrons from riding.'” (Id. at pp. 1157–1158.)

Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family. In particular, according to RhodyCo—under the test articulated in Nalwa—it had no duty to minimize Hass’s risk of death from cardiac arrest. Or, put another way, it had no duty to [*43]  reduce the natural consequences of Hass’s cardiac arrest or increase his chances of recovery.

In taking this position, RhodyCo acknowledges that the appellate court in Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173 [119 Cal. Rptr. 2d 497] (Saffro) held that a race producer has a duty to conduct a “reasonably safe event,” which “requires it to take reasonable steps to ‘minimize the risks without altering the nature of the sport.'” (Id. at p. 175.) In Saffro, a marathon runner suffered a grand mal seizure after a race and was diagnosed with severe hyponatremia, likely caused by his inability to consume adequate amounts of water and fluids containing electrolytes (such as Gatorade) during the race. (Id. at p. 176.) Although the race organizer sent written materials to participants prior to the event indicating that such liquids would be provided in sufficient quantities, the evidence suggested that they were not. (Id. at pp. 176–177.) The trial court granted summary judgment in favor of the race organizer, concluding that hyponatremia is an inherent risk of running a marathon. (Id. at pp. 177–178.) The appellate court reversed, stating that a race organizer’s duty to conduct a reasonably safe event includes “the obligation to minimize the risks of dehydration and hyponatremia by providing adequate water and electrolyte [*44]  fluids,” especially where the race organizer had made representations to the participants that such fluids would be available. (Id. at p. 179.) Since Saffro had presented sufficient evidence to create a triable issue of fact as to whether the race organizer had breached this duty, summary judgment was improper. (Id. at pp. 179–181; see also Rosencrans, supra, 192 Cal.App.4th 1072, 1079, 1082–1083 [although collisions with coparticipants are an inherent risk of motocross, operator of a motocross track has a duty to minimize this risk without altering the nature of the sport by providing a warning system, such as caution flaggers; triable issue of fact existed as to whether failure to provide a caution flagger constituted gross negligence].) RhodyCo claims that Saffro is inapplicable both because it is a secondary assumption of the risk case and because the “duty to minimize risk” language from Knight that Saffro and other cases have “latched onto” is dictum which has been abrogated by the Supreme Court’s subsequent decision in Nalwa.

We disagree with RhodyCo that the Nalwa court’s formulation of the primary assumption of the risk doctrine somehow supplanted the high court’s earlier discussion of the matter in Knight, particularly with respect to the Supreme Court’s statements [*45]  regarding an organizer/operator’s duty “to minimize the risks without altering the nature of the sport.” (Knight, supra, 3 Cal.4th at p. 317.) Rather, Nalwa—far from disagreeing with Knight—referenced it as the “seminal decision explicating and applying primary assumption of risk in the recreational context.” (Nalwa, supra, 55 Cal.4th at p. 1155.) Moreover, Nalwa‘s formulation of the limited duty existing in a primary assumption of the risk case—”the duty not to act so as to increase the risk of injury over that inherent in the activity”—comes directly from Knight. (Nalwa, supra, 55 Cal.4th at pp. 1154–1155, 1162–1163.) Finally, and most importantly for our purposes, Nalwa did not reject cases such as Saffro and Rosencrans which concluded, based on language found in Knight, that operators/organizers have a duty to minimize risks without altering the nature of the sport. (Nalwa, supra, 55 Cal.4th at p. 1163 & fn. 7.) Instead, it characterized them as “decisions addressing the duty to reduce extrinsic risks of an activity” and found them distinguishable in that particular case because it concluded that the risk of injury from bumping—at any angle—was not an extrinsic risk, but was instead a risk inherent to riding bumper cars. (Id. at pp. 1157–1158, 1163.)

CA(16)[] (16) Indeed, Nalwa expressly states that “[t]he operator of a bumper car ride might violate its ‘duty to use due care not to [*46]  increase the risks to a participant over and above those inherent’ in the activity (Knight, supra, 3 Cal.4th at p. 316) by failing to provide routine safety measures such as seatbelts, functioning bumpers and appropriate speed control.” (Nalwa, supra, 55 Cal.4th at p. 1163.) Thus, Nalwa actually reaffirms Knight‘s conclusions regarding the duties owed to participants by operators/organizers of recreational activities. In short, HN19[] such operators and organizers have two distinct duties: the limited duty not to increase the inherent risks of an activity under the primary assumption of the risk doctrine and the ordinary duty of due care with respect to the extrinsic risks of the activity, which should reasonably be minimized to the extent possible without altering the nature of the activity. Nalwa explains the interplay between these two types of duties by confirming that an operator’s or organizer’s negligence with respect to extrinsic risks “might violate its ‘duty to use due care not to increase the risks to a participant over and above those inherent’ in the activity.” (Nalwa, supra, 55 Cal.4th at p. 1163.)

In the present case, both parties acknowledge that cardiac arrest is an inherent risk of the sport of long-distance running. Further, it is not suggested on these facts that RhodyCo did [*47]  anything that increased the risk that Hass would have a heart attack.7 Moreover, requiring runners to slow down or take breaks in order to decrease this inherent risk would alter the character of racing to such a degree that it would likely discourage runners from participating. However, as both Knight and Nalwa teach us, this is not the end of the inquiry. While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm. (Nalwa, supra, 55 Cal.4th at p. 1163 [while risk of injury from bumping bumper cars is generally low, an operator could violate its duty not to increase this inherent risk by failing to provide routine safety measures]; Knight, supra, 3 Cal.4th at pp. 315–316 [negligent maintenance of towropes by ski resort could violate duty not to expose skiers to increased risk of harm]; Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1297–1302 [222 Cal. Rptr. 3d 633] [crash landings caused by failure to safely pilot a hot air balloon are an inherent risk of hot air ballooning, but an operator has a duty not to increase that risk by failing to instruct participants on safe landing procedures, a customary practice in the ballooning industry]; Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 610–611 [202 Cal. Rptr. 3d 536] [although [*48]  contact with the floor is an inherent risk in dancing, school may have increased student’s risk of harm through failure to properly disseminate its no-flip policy]; Rosencrans, supra, 192 Cal.App.4th at pp. 1083–1086 [negligent failure to provide collision warning system in motocross]; Saffro, supra, 98 Cal.App.4th at pp. 175, 179–181 [duty not to increase risk of dehydration and hyponatremia by unreasonably failing to provide adequate fluids]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 364–367 [114 Cal. Rptr. 2d 265] [although falling is an inherent risk of skiing, failure to mark off race area containing jumps which an ordinary skier would not expect to encounter may breach duty not to increase inherent risk]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] [although being hit by a golf ball is an inherent risk of golfing, golf course owner had a duty to design course to minimize the risk of being hit where possible without altering the nature of golf].) As the Fourth District recently opined in Grotheer, “[w]hat the primary assumption of risk doctrine does not do … is absolve operators of any obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317–318.) As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so.” (Grotheer, supra, 14 Cal.App.5th at p. 1300.) And, in Solis, the appellate court succinctly [*49]  illustrated the issue raised by these cases as follows: “[F]alling off a horse is an inherent risk of horseback riding. But if a person put a barrel in the middle of the Churchill Downs racetrack, causing a collision and fall, we would not say that person owed no duty to the injured riders, because falling is an inherent risk of horseback riding.” (Solis, supra, 94 Cal.App.4th at p. 365.)

When viewed under this analytical framework, Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307 [59 Cal. Rptr. 3d 770], disapproved on another ground as stated in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 327 [173 Cal. Rptr. 3d 662, 327 P.3d 774], and Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]—two cases relied upon by RhodyCo—are not inconsistent. In Rotolo, parents of a teenager who died as a result of sudden cardiac arrest while playing ice hockey sued the ice hockey facility for wrongful death, claiming that the facility had a duty to notify facility users of the existence and location of the facility’s AED. (Rotolo, supra, 151 Cal.App.4th at p. 313.) The appellate court disagreed, noting that sudden cardiac arrest is a risk inherent in playing strenuous sports and that the facility had done nothing to increase this risk. (Id. at p. 334.) During the course of its analysis, the Rotolo court stated: “We have found no authority for the proposition that a sports facility operator has a duty to reduce the effects of an injury that is an inherent risk in the sport, or to increase [*50]  the chances of full recovery of a participant who has suffered such a sports-related injury, or to give notice regarding any first aid equipment that may be available for such a purpose.” (Id. at pp. 334–335.) In making this determination, however, the Rotolo court searched exhaustively for a duty that the facility could have breached in this context and could not find one. (Id. at pp. 319–339.) In particular, it noted that the facility had not breached its duties to keep the property in a reasonably safe condition or to summon emergency medical aid.8 (Rotolo, at pp. 316–317, 332–334.) Since the sports facility had not acted negligently with respect to any risks extrinsic to the sport of hockey, thereby increasing its inherent risks, the primary assumption of the risk doctrine barred recovery. (Id. at pp. 334–335.) Similarly, in Connelly, the plaintiff argued that the ski resort had insufficiently padded a ski lift tower, thereby causing him serious injury when he collided with it. (Connelly, supra, 39 Cal.App.4th at pp. 10–11.) The appellate court concluded that colliding with a ski lift tower is an inherent risk of skiing and that the ski resort had done nothing to increase this risk by padding the towers, which the resort had no duty to do in the first place. (Id. at pp. 12–13.) In essence, the court concluded that the ski [*51]  resort had not breached its underlying duty to provide a reasonably safe ski resort and thus the primary assumption of the risk doctrine barred the plaintiff’s negligence action. (See id. at pp. 11–14.)

CA(17)[] (17) It is undisputed in this case that RhodyCo has provided event management and production services for “high profile” running and walking events for over 25 years and that, while these events involved over 1.5 million participants, Hass was the first fatality. Thus, while death from cardiac arrest is undeniably a risk associated with long-distance running, it appears from RhodyCo’s own facts to be a slight one. The question therefore remains whether RhodyCo, as the organizer of the Half Marathon, acted negligently in its provision of emergency medical services—a risk extrinsic to the sport of long-distance running—in such a way that it exposed Hass to an increased risk of harm over and above that generally inherent in the activity itself. Since we have previously concluded that the Hass Family has raised a triable issue of fact as to whether RhodyCo was grossly negligent in this regard, the primary assumption of the risk doctrine does not act as a complete bar to the present negligence action. [*52] 9 The trial court’s decision to reverse itself on this ground and allow the case to continue was therefore not error.

CA(18)[] (18) As a final matter, we note that HN20[] imposing a duty of due care with respect to “extrinsic” risks for operators and organizers of recreational activities makes sense based on the policies underlying the primary assumption of the risk doctrine. As stated above and as articulated in Nalwa, supra, 55 Cal.4th at pages 1156–1157: “The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity. … [¶] … Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature.” (Id. at pp. 1156–1157.) Moreover, “active recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects [*53]  of potential tort liability for ordinary negligence.” (Id. at p. 1157.) The Nalwa court counseled that the doctrine’s parameters should be drawn according to this underlying policy goal. (Ibid.) Obviously, requiring an operator or organizer of recreational activities to provide a reasonably safe event, reasonably maintained attractions, and/or customary safety warnings—far from chilling vigorous participation in such activities—would almost certainly increase their attractiveness to potential participants. Moreover, an owner or event organizer is still protected from liability with respect to the inherent risks of these activities. And, given that participation in these recreational pursuits is almost always contingent on the signing of a release, such owners and organizers are generally also relieved of the consequences of their ordinary negligence. Allowing owners and organizers to avoid accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it. (Santa Barbara, supra, 41 Cal.4th at pp. 750–751; see also id. at pp. 767–776 [rejecting as unsupported by empirical evidence the assertion that refusing to uphold agreements releasing liability for future gross negligence [*54]  will lead to the extinction of many popular and lawful recreational activities].)

III. DISPOSITION

The judgment is affirmed in part and reversed in part, and the matter remanded for further proceedings consistent with this opinion. In particular, the trial court is instructed to enter an order denying RhodyCo’s motion for summary judgment. The Hass Family is entitled to its costs on appeal.

REARDON, J.

We concur:

STREETER, Acting P. J.

SMITH, J.*


Only a New York City bike share case create a 34-page opinion on just motions that are filed. The results are all over the board, both the defendants and the plaintiff winning issues on an electronic release

A Ten-page release was upheld as valid. But the process was full of enough holes the plaintiff is still in the game.
Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

State: New York: United States District Court for the Southern District of New York

Plaintiff: Ronald D. Corwin, et al

Defendant: NYC Bike Share, LLC, et al

Plaintiff Claims: was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice

Defendant Defenses: Release, Assumption of the Risk Immunity

Holding: Mixed

Year: 2017

Summary

Extremely complicated decision because of the number of claims of the plaintiff and the number of defendants in the case. Each defendant has a different perspective to the defenses.

The decision looks at what happens if you are not wearing a helmet while cycling and you receive a head injury as well as how assumption of the risk and open and obvious defenses are dealt with in a city and against city agencies.

The last issue, is electronic releases in New York City.

Facts

The plaintiff had signed up for a year long bike share rental agreement with New York City bike share. He did that online and, in the process, agreed to a release that was ten pages.

He rented a bike one day and was riding on the street. He felt pressure from traffic on his left. A bike share area was coming up on his right and he rode into it. The bike share locations must be on the streets in New York. He continued through the area and at the end hit a concrete wheel stop. He crashed suffering injuries.

Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging that the Citi Bike station in question was improperly designed, in-stalled, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.

He sued everyone there was in New York. Sixteen different law firms are listed in the case. The plaintiff sued:

City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program

NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system

New York City Department of Transportation

Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company

Alta Planning + Design (“APD”)

Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system

Metro Express Services, Inc. (“Metro Express”) installation

Sealcoat USA, Inc. (“Sealcoat”) installation

The lawsuit was in Federal District Court. This opinion is the magistrate’s opinion on the motions filed by the parties. Judge assign non-trial work, such as deciding motions to magistrates. After the magistrate’s opinion is filed the parties have X days to respond/object. The judge then reviews and either adopts, modifies or writes his own opinion.

When the judge rules on the magistrate’s opinion there is usually a written record of the ruling. There are two additional motions the magistrate writes about that are in the record, but no ruling from the court.

Probably the parties settled based on this ruling.

There are a lot of arguments in this 34-page ruling. I’m only going to write about the ones that are important to the outdoor recreation and cycling community.

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

The first defense discussed here is the electronic release signed by the plaintiff to become a bike share member and rent bikes.

The first issues were plaintiff did not remember signing the release, but did sign up and admitted that he probably agreed to things.

The Bike Share program could not produce a release “signed” by the plaintiff. The produced a release that was in use at the time the plaintiff signed the release and the produced testimony of a former manager to testified that the only way the plaintiff could have become a member and ride bikes was if he had agreed to the release.

The plaintiff also argued the release was Unconscionable.

A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party

The court first went into the issue of whether the release existed and was signed. The release was determined to be a “clickwrap” agreement.

Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of service. “[U]nder a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.”

The court found clickwrap agreements were enforceable.

Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.

However, the presumption of enforceability is based several factors.

The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind them-selves to contract terms

In New York the courts have already set a group of tests to determine if a clickwrap agreement is enforceable.

First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement.

Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink.

Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” (collecting cases refusing to enforce such agreements).

Special attention should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted).

Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.

Using this set of parameters, the magistrate reviewed the bike Share release and found it was not unconscionable.

The plaintiff then argued the release was not clear, coherent or unambiguous.

To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims.

This ambiguity was based on contradictions between two sections in the ten-page release. However, the court found there was no ambiguity.

Then the plaintiff argued the release was void on public policy grounds.

The plaintiff raised three arguments on why the release violated public policy. It violated New York City Administrative Code, it violated New York General Obligations law § 5-326 and it violated the cities common law duty to maintain roads.

The court found New York City administrative code could not serve as a basis for invalidating a release.

New York General Obligations law § 5-326 is the statute that restricts on who can use a release. The language of the statutes says that “operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” can’t use a release. Since the bike share program was not a facility, the release was valid.

Finally, the common law duty the city of New York had to maintain the roads did not violate the release because “…the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads.”

The release was not void based on public policy considerations.

However, the release did not apply to the city of New York because that would be contrary to public policy.

In the end the negligence claims of the plaintiff were denied because of the release. The gross negligence claims were still valid. Under New York Law and the law of most states, claims for gross negligence cannot be stopped by a release.

The next issue was how the fact the plaintiff did not wear a helmet, at the time of his injury, would be used in the case.

The defendants argued that the plaintiff not wearing a helmet should be used by the defendants to show the plaintiff was liable for his injuries, (that the plaintiff was comparative negligence), to prove assumption of the risk and to mitigate the damages he incurred.

The plaintiff argued that since there was no statutory duty to wear a helmet, then the defendants could not make their arguments.

The court applied the same rationale to wearing a bike helmet as the courts had done in New York to wearing a seat belt in a car crash. Not wearing a bike helmet, it could not be used to prove liability on the part of the plaintiff but it could be used to reduce damages.

…the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how dam-ages, if any, should be assessed.

The defendant then argued they should have qualified immunity on the plaintiff’s claims of failing to provide a bike helmet to him while renting a bike.

Immunity is granted by statute to governments and their agencies for the decisions they make. As long as the decisions are not intentional and thought out the immunity applies. The immunity then stops the courts from reviewing those decisions as long as the decisions are made under the guidelines the law has set out.

Although the city may use the fact the plaintiff did not wear a helmet to reduce any damages the city might owe to the plaintiff. The plaintiff cannot use that argument to say the city was liable for not providing helmets. Nor can the plaintiff argue the his not wearing a helmet was unreasonable and did not breach a duty of care.

Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.

Here those guidelines were made by the city in its decision to not include helmets in the rentals of the bikes.

He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.

Assumption of the Risk

The defendants moved for summary judgment because the plaintiff assumed the risk of his injuries while riding a bike. Primary assumption of the risk is defined as:

In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

The risks were also identified in the release the plaintiff signed and which had been accepted by the court.

Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.”

However, the court rejected the defense because the plaintiff at the time of his injury was not engaged in a sporting activity.

Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her con-sent to the dangers inherent in the activity may reasonably be inferred.” Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.

So, assumption of the risk only applies to recreation and sports in New York? If you are walking down a sidewalk and see a hole in the sidewalk, on your way to work you don’t assume the risk if you fall into the hole?

The next argument by the defendants are not liable because the danger the plaintiff encountered was open an obvious.

The Open and Obvious defense seems fairly simple. If the thing or condition that injured the plaintiff was open and obvious then the plaintiff cannot sue for his injuries. It is very similar to an assumption of the risk defense.

A defendant has “no duty to protect or warn against an open and obvious condition which is not inherently dangerous. Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion

The defendants argue the concrete wheel stop was open and obvious.

…because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.

The plaintiff’s argument, based on the testimony of his expert witness was the wheel stop was not open and obvious because it was too big and was located in the travel lane had been camouflaged, in the way it was put in and painted.

The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.”.

How something could be too big and then not be open and obvious is confusing. This was enough for the court to deny motion for summary judgment based on the open and obvious theory.

Gross Negligence of the Bike Share defendant

Gross negligence under New York law is

…conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” “In order to establish a prima facie case in gross negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.

The plaintiff’s expert opined that the defendants ignored sound engineering practices when creating and installing the wheel stop and that it was foreseeable that the injuries would occur when the wheel stop was placed in the cycling path. Based on that language, the court found that the actions of the defendants could be defined as gross negligence.

The defendant won most of the decisions, however the plaintiff won enough and won significant ones that allowed the litigation to continue.

So Now What?

The final paragraph of the decision has a review of all decisions for the plaintiff and the defendants if you would like to keep a tally. However, there are several decisions concerning plaintiffs that were not reviewed here because they had no relationship to outdoor recreation or the legal issues commonly faced in outdoor recreation.

Obviously, the injuries to the plaintiff are significant to bring such forces to this litigation to justify this much work. The amount of effort put into prosecuting a case for a plaintiff can SOMETIMES be an indication of the damages to the plaintiff when those damages are not identified in the decision.

More importantly, the legal issues of suing New York City and its agencies are far more complex then found in most cities.

There are some interesting points worth noting. You could guess that the judge thought a ten-page release was long since she pointed it out. However, you cannot argue that your release is too long. Especially since electronically they do not have a length that is measured so easily.

Not wearing a helmet can be an issue in cycling and possibly skiing, even though the effectiveness of wearing one can be disputed. I suspect the next step would be to find a helmet expert by the plaintiff to argue that a helmet would not have prevented the damages the plaintiff received and the defendants will find an expert to argue the opposite.

The failure to provide proof that the plaintiff signed the release was overcome. However, design your system so you don’t have to jump through these hurdles. Crate a system that matches the signing to the credit card or other way of showing that on this date at this time the person entered his name and address, credit card number and clicked on this button saying he accepted the release. Then you add, his credit card would not have been charged unless he agreed to the release.

If you are designing bike share locations, do so in a way that people on bikes can assume they can ride through them.

What do you think? Leave a comment.

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Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

Ronald D. Corwin, et al., Plaintiffs, -against- NYC Bike Share, LLC, et al., Defendants.

14-CV-1285 (SN)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

March 1, 2017, Decided

March 1, 2017, Filed

SUBSEQUENT HISTORY: Reconsideration denied by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 53812 (S.D.N.Y., Apr. 7, 2017)

Summary judgment granted by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 57254 (S.D.N.Y., Apr. 13, 2017)

CORE TERMS: bike, station, wheel, helmet, bicycle, summary judgment, street, cyclist’s, parking, user, roadway, lane, public policy, matter of law, traffic, wear, installation, riding, notice, negligence claims, qualified immunity, affirmative defenses, municipality, contractor, installed, recreational, planning, genuine, rider, safe

COUNSEL: [**1] For Ronald D. Corwin, Beth Blumenthal, Plaintiffs: Martin William Edelman, LEAD ATTORNEY, Edelman & Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT; Neil R. Finkston, Law Office of Neil R. Finkston, Great Neck, NY.

For NYC Bike Share LLC, Alta Bicycle Share, Inc., Defendants, Cross Claimants, Cross Defendants: Peter W. Beadle, Law Offce of Vaccaro & White, LLP, New York, NY; Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.

For City of New York, Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Howard Martin Wagner, Trief and Olk, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.

For Alta Planning + Design, Inc., Alta Planning Design Architecture of New York, PLLC, Defendants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY; Katherine Buchanan, The Law Firm of Hall & Hall, LLP, Staten Island, NY.

For MetroExpress Services, Inc., Defendant: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For Sealcoat USA, [**2] Inc., Defendant, Cross Defendant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY; Brian L. Battisti, Morrison Mahoney, LLP(NYC), New York, NY.

For Sealcoat USA Inc., ADR Provider: Mitchell John Baker, LEAD ATTORNEY, Baker, Leshko, Saline & Blosser, LLP, White Plains, NY.

For Metro Express, Inc., Interested Party: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For New York City Department of Transportation, Cross Claimant, Cross Defendant: Kimberly Kristen Brown, Hoey, King,Epstein, Prezioso & Marquez, New York, NY.

For NYC Bike Share LLC, Cross Claimant, Cross Defendant: Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.

For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY.

For Alta Planning Design, Inc., Alta Planning Design Architecture of New York, PLLC, Cross Claimants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY.

For Beth Blumenthal, Cross Defendant: Martin William Edelman, LEAD ATTORNEY, Edelman & [**3] Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT.

For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.

For MetroExpress Services, Inc., MetroExpress Services, Inc., Cross Defendant, Cross Claimants: Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For Sealcoat USA, Inc., Cross Claimant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY.

JUDGES: SARAH NETBURN, United States Magistrate Judge.

OPINION BY: SARAH NETBURN

OPINION

[*480] OPINION & ORDER

SARAH NETBURN, United States Magistrate Judge:

On October 25, 2013, Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging [*481] that the Citi Bike station in question was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and [**4] professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.1

1 As Blumenthal’s claims depend entirely on the viability of Corwin’s causes of actions, the two claims are referred to in shorthand as “Corwin’s” throughout the text of the opinion. Where the Court grants summary judgment or partial summary judgment to defendants on certain of Corwin’s claims, Blumenthal’s claims are dismissed as well. Vega-Santana v. Nat’l R.R. Passenger Corp., 956 F. Supp. 2d 556, 562 (S.D.N.Y. 2013) (“Where the primary cause of action is dismissed on summary judgment, the loss of consortium claim must be dismissed as well.”).

On February 27, 2014, Corwin brought claims against three defendants: the City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program; NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system, and the New York City Department of Transportation (“DOT”). ECF No. 1, Compl. On December 31, 2014, Corwin amended his complaint to remove the DOT and add three additional defendants: Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company; and Alta Planning + Design (“APD”) and Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system. ECF No. 27, First Am. Compl. After conducting significant discovery, Corwin moved for and was granted leave to amend his complaint to join two additional defendants, Metro Express Services, Inc. (“Metro Express”) and Sealcoat USA, Inc. (“Sealcoat”), both contractors who are [**5] alleged to have participated, in violation of the station’s design plan, in the installation of the wheel stop struck by Corwin. ECF No. 192, Second Am. Compl.

All of the defendants move separately for summary judgment on a variety of grounds.2 All defendants argue that the condition was open and obvious and that Corwin’s negligence claims generally fail as a matter of law. The City, NYCBS, and APD argue that Corwin’s common-law negligence claims were released by the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”) that he had to sign as a condition of Citi Bike membership, and that they are barred by the doctrine of primary assumption of the risk. APD, Metro Express and Sealcoat argue that, as third-party entities in a contractual relationship with Corwin, they owed him no duty of care. APD additionally argues that the Citi Bike station’s deviation from the design is an absolute bar to liability, and that there was no causation between its design and Corwin’s injury. The City also contends that Corwin’s claims are barred due to the doctrine of qualified immunity and its lack of written notice of the condition pursuant to a municipal notice statute.

2 As their liability is exclusively a product of being a parent company of a wholly owned subsidiary, Alta Bicycle Share, Inc./Motivate, Inc. moves for summary judgment together with NYCBS, and APD moves together with APDNY. For the sake of brevity, these motions are referred to as the “NYCBS” and “APD” motions, respectively.

For his [**6] part, Corwin moves for partial summary judgment on two issues. First, he argues that the Release Agreement is unenforceable on numerous statutory, public policy, and contract formation grounds, and that defendants’ affirmative defenses [*482] relying on the Agreement should be dismissed as a matter of law. Second, he contends that the fact that he was not wearing a helmet at the time of the accident is irrelevant as a matter of law to issues of assumption of the risk, comparative fault, or failure to mitigate damages, and therefore defendants’ affirmative defenses relying on this argument should be dismissed.

For the following reasons, the cross-motions for summary judgment are GRANTED in part and DENIED in part. Corwin’s motion to dismiss defendants’ affirmative defenses relying on the Release Agreement is DENIED as to NYCBS; the Agreement is enforceable as a matter of law as to NYCBS. Corwin’s motion to dismiss the affirmative defenses relating to the Release Agreement is GRANTED as to the City because a contractual waiver of the City’s non-delegable duty to maintain public thoroughfares would be contrary to public policy. Corwin’s motion to dismiss defendants’ affirmative defenses relating [**7] to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED; as stated above, the Release Agreement is ineffective to waive Corwin’s claims at to the City, and the City has not demonstrated its entitlement to judgment as a matter of law on qualified immunity, notice, or other grounds. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable as to NYCBS, Corwin’s common-law negligence claims are barred, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED because APD and APDNY did not owe any duty to Corwin. Accordingly, APD and APDNY are dismissed from this case. Metro Express and Sealcoat’s motions for summary judgment are DENIED because a genuine dispute of material fact exists as to whether they owed Corwin a duty of care under applicable New York law.

BACKGROUND

I. History of the Citi Bike Program

Beginning in 2009, the City of New [**8] York began to study the feasibility of installing a bike share system in and around City streets, located in curbside parking lanes, on sidewalks, and near public spaces and parks. ECF No. 293, City’s Rule 56.1 Statement (“City St.”) ¶ 2. On April 10, 2012, the City and NYCBS entered into an agreement for the design, construction, operation, maintenance, and publicizing of “Citi Bike,” a network of self-service bike share stations with publicly available bicycles. ECF No. 310, Corwin’s Rule 56.1 Statement (“Corwin St.”) ¶ 2. The system became operational in May 2013. City St. ¶ 5; ECF No. 317, NYCBS’s Rule 56.1 Statement (“NYCBS St.”) ¶ 1.

The City-NYCBS contract required NYCBS to design and install on-street bike parking stations “with appropriate protections and markings from adjacent parking and moving traffic. . . . [including] non-permanent bollards and paint markings.” City St. ¶ 31. The contract also noted that all protections and markings were to be preapproved by the DOT’s Division of Traffic. Id.

The design for the Citi Bike stations was modeled in part on the City’s previous experience with “bike corrals,” which were also placed in parking lanes and were designed by the DOT’s Highway Design Unit and [**9] Pedestrian and Bicycle Group. City St. ¶¶ 41-42. These corrals had many elements that would ultimately be integrated [*483] into the Citi Bike stations, such as wheel stops, paint marking and bollards. Id. ¶ 42.

At the time that the NYCBS contract was signed with the City, APD and APDNY were subsidiaries of Alta Bicycle Share, Inc., NYCBS’s parent company. Id. ¶ 48. APD assembled a team of architects, engineers, and designers to collaborate with the City on station design. Id. ¶¶ 49-50. Using a bike corral on Smith and Sackett Street as an exemplar, the APD and the City developed “Station Siting Guidelines” that included the use of unpainted, concrete wheel stops. Id. ¶¶ 51-57. Though the City originally approved the use of rubber wheel stops, it instructed NYCBS to replace them with concrete wheel stops because the rubber stops were not sufficiently durable. Id. ¶ 96. The wheel stops were considered by APD to be necessary to prevent damage to the station equipment by encroaching vehicles. Id. ¶ 58.

The final design for Citi Bike stations situated in parking lanes included white thermoplastic markings and three-foot tall, reflective, flexible delineators on or near the markings. Wheel stops [**10] were to be used in the stations to protect the station equipment. Id. ¶¶ 64-66. These elements were collectively referred to as “street treatment.” Id. ¶ 81. While NYCBS installed the station equipment directly, it contracted the installation of street treatment to Metro Express, allegedly without the City’s awareness. Id. ¶ 83. MetroExpress, in turn, subcontracted this work to another entity, Sealcoat, allegedly without the awareness of either the City or NYCBS. Id. ¶¶ 85-86.

The City considered, but chose not to mandate that Citi Bike riders wear helmets. It also did not provide helmets for Citi Bike riders on demand. Id. ¶ 8. The City came to this conclusion because (a) New York law did not mandate that adult cyclists wear helmets and it did not want to promote different standards for Citi Bike riders and other cyclists as a matter of public policy; (b) it believed, based on studies conducted in other cities, that mandatory helmet laws decreased bicycle ridership in general and bike share system use in particular; (c) certain statistics indicated that mandatory helmet laws actually decreased cyclist safety by reducing the number of cyclists on the road; and (d) research suggested [**11] that helmeted cyclists tended to ride more recklessly than those without helmets. Id. ¶¶ 9-16; Corwin St. ¶ 10. The City also specifically evaluated the feasibility and wisdom of instituting a public helmet distribution system, but ultimately concluded that there were numerous logistical barriers to such a system, such as hygiene, the fact that the structural integrity of helmets would be compromised if they were involved in an accident, and lack of proper fitting and sizing capabilities. City St. ¶¶ 18-22. The City further considered what it viewed as unfavorable experiences with such systems in Seattle, Boston, and Melbourne, Australia. Id. ¶ 25. The City did, however, provide annual Citi Bike members with discounted vouchers for helmets and expanded its helmet giveaway and fitting programs. Id. ¶¶ 27-28.

II. Design and Installation of Citi Bike Station on East 56th Street and Madison Avenue

The station where Ronald Corwin’s accident occurred was located at the intersection of East 56th Street and Madison Avenue. Id. ¶ 98. The City issued a permit to NYCBS for the installation of the station on July 22, 2013, and the station equipment was installed on July 30, 2013. Id. ¶¶ 103-04. [**12] The City approved APD’s design drawing of the station on August 6, 2013, including all street treatment. Id. ¶ 100. The approved design had only one wheel stop at the west end of the station, [*484] no thermoplastic striping within the boxes at the ends of the station, a station width of eight feet, and a total of six delineators. ECF No. 301, Alta Planning and Design Rule 56.1 Statement (“APD St.”) ¶ 30. None of the site plan drawings, including the approved drawing, contained a wheel stop at the east end of the station closest to Madison Avenue.

The street treatment at the East 56th Street and Madison Avenue station was installed on or about October 22, 2013. APD St. ¶ 31. Notwithstanding its absence on the approved plan, a wheel stop was installed at the east end of the station as well, and the station did not conform to the approved plan in several other respects: the station footprint was made wider by the installation of thermoplastic striping more than eight feet in width, additional delineators were added, and cross-hatched striping was installed on either end of the station underneath the wheel stops. Id. ¶ 34. Though this is disputed by the defendants, Corwin argues that the wider footprint [**13] is relevant because, as it provided less clearance between the edge of the station and moving traffic, it would have encouraged a cyclist to use the station itself as a temporary riding lane. ECF No. 335, Decl. of Pl.’s Exp. James E. Green, ¶¶ 56-58. The City denies approving the installation of a second wheel stop at this site, and claims that its records do not show that it had written notice regarding the additional wheel stop. City St. ¶¶ 102, 106, 108.

The entity responsible for installing the wheel stop is contested; Metro Express and Sealcoat contend that an October 18, 2013 email from NYCBS informed them only of the need for repairs to the station, and that after Sealcoat representative Ryan Landeck visited the station on October 22, 2013, he reported that there was nothing to be done at the station in a October 24, 2013 email to Metro Express. ECF No. 368-3, Landeck Depo. at 41, 51; ECF No. 368-4, Landeck Oct. 24, 2013 E-mail. Metro Express further contends that the City had often instructed NYCBS, who in turn had instructed Metro Express to install “Supplemental Street Treatments” not depicted on station plans, and that such supplemental installations included second wheel [**14] stops. ECF No. 368-8, May 17, 2013 Email; ECF No. 335-20, Strasser 06/28/16 Depo. at 48-51. Metro Express alleges that on July 17, 2013, and October 9, 2013, it was specifically ordered by NYCBS to install a second wheel stop not depicted on station plans at three stations around the network. ECF 368-10; 368-11; 368-12; 368-13; 368-14. There is no direct evidence in the record, however, that such a request was ever issued for the East 56th Street and Madison Avenue station.

III. Ronald Corwin’s Citi Bike Membership and Release Agreement

Ronald Corwin signed up online for an annual Citi Bike membership on June 25, 2013. Corwin St. ¶ 15. Corwin does not remember the details of the process, and did not recall clicking on or reading the Bicycle Rental, Liability Waiver, and Release Agreement as a condition of membership. Id. ¶ 18. Nevertheless, he did admit in deposition testimony that “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike Pass.” NYCBS St. ¶ 21. NYCBS has not, however, produced a version of the Agreement dated contemporaneously to Corwin’s registration, or Corwin’s actual electronic signature. Corwin St. ¶ 22.

While the applicability and enforceability [**15] of the Release Agreement is disputed by the parties, there is no serious dispute as to its content. NYCBS has produced an agreement dated July 25, 2014, and Justin Ginsburgh, former General Manager of [*485] NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, testified that this agreement was active on the date that Corwin became a member. ECF No. 316, Ginsburgh Decl. ¶¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl. ¶¶ 2-3; ECF 316-1, Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). Ginsburgh attested that it would be impossible to become a Citi Bike member without first being shown the Release Agreement in a scrollable text box and then clicking a box stating “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in (sic) User Agreement.” NYCBS St. ¶¶ 17-18; City St. ¶¶ 118-20.

The Release Agreement contains several provisions, which are reproduced below in relevant part:

Section 6. Releases:

In exchange for You being allowed to use any of the Services, Citi Bike bicycles, Stations, Bike Docks, or related information, You . . . do hereby fully and forever release [**16] and discharge all Released Persons for all Claims that You have or may have against any Released Person, except for Claims caused by the Released Person’s gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended 3rd beneficiaries of such releases.

“Claims” is defined in the Release Agreement as “any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings [or] damages that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information . . . .” “Released Persons” is defined in the Agreement, as relevant, as including: “(i) NYCBS and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns [and] (ii) the City of New York.”

Section 7. Disclaimers:

You do hereby acknowledge and agree that your use of any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, is at your sole risk. . . . [**17] All of the services, Citi Bike bicycles, stations, bike docks, or related information are provided “as is” and “as available” (and you rely on them solely at your own risk). . . . You assume full responsibility and risk of loss for using any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, and NYCBS and all other released persons are not liable for any claim attributable to any of the foregoing.

Section 8. Limited Liability:

You do hereby acknowledge and agree that, except as may otherwise be limited by New York General Obligation Law Section 5-326, NYCBS and all other released persons are not responsible or liable for any claim, including those that arise out of or relate to (A) any risk, danger or hazard described in the Agreement, (B) Your use of or inability to use, any of the services, Citi Bike bicycles, stations, bike docks, or releated (sic) information, (C) your breach of this agreement or your violation of any law, (D) any negligence, misconduct, or other action or inaction by you, (E) your failure to wear a bicycles helmet while using Citi Bike bicycle, or (F) any negligence, misconduct, or other action or inaction of any third party. You do hereby waive all claims with respect to any [**18] [*486] of the foregoing, including those based in contract, tort (including negligence), statutory, or other grounds, even if NYCBS or any of the other released persons has been advised of the possibility of such claims. The total liability of NYCBS and all other released persons for all claims, including those based in contract, tort (including negligence), statutory, or other grounds, is limited to the sum of $100.

Section 9. Assumption of Risk by Member:

Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to Member or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.

IV. Ronald Corwin’s Ride and Accident

At 10:57 a.m. on October 25, 2013, Ronald Corwin picked up a Citi Bike at a station located on the southeastern corner of 6th Avenue and East 56th Street. From there, he travelled in the direction of Grand Central Station. Corwin St. ¶ 25; NYCBS St. ¶ 32. He was not wearing a helmet. Corwin St. ¶ 26; City St. ¶ 137. Corwin proceeded eastbound in the [**19] traffic lane on East 56th Street, with vehicular traffic proceeding to his left. NYCBS St. ¶ 34. Because Corwin claimed to have been “under pressure” from the vehicular traffic, he turned into the Citi Bike station on East 56th Street and Madison Avenue. Id. ¶ 35. The station area was indicated by a perimeter of 4 inch white thermoplastic stripes on the asphalt roadway, and three foot tall white flexible delineators with gray reflective tape spaced approximately every 10 feet along the thermoplastic striping. Id. ¶ 36. At either end of the station, unpainted concrete wheel stops measuring 5 feet, 10.5 inches long by five inches high, were installed on the roadway. Id. ¶ 40. These wheel stops were framed by a box of white thermoplastic striping with diagonal cross-hatching, staked out by three-foot tall flexible delineators. Id. ¶ 41. While he was travelling within the station “envelope,” the front wheel of Corwin’s Citi Bike hit the concrete wheel stop installed near the crosswalk at the Madison Avenue end of the station, causing him to crash onto the pavement and sustain serious injury. Corwin St. ¶ 26.

ANALYSIS

I. Standard of Review

Under Federal Rule of Civil Procedure 56(a), the court “shall grant summary judgment if [**20] the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party bears the initial burden of establishing that there are no material facts in dispute and must provide “affirmative evidence” from which a factfinder could return a verdict in its favor. Id. at 257. Then “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to [*487] deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1224 (2d Cir. 1994).

In determining whether summary judgment is appropriate, the court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference [**21] could be drawn in favor of the nonmoving party. . . .” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). To create a disputed fact sufficient to deny summary judgment, the non-moving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible. . . .” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Instead, the response “must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation and internal quotation marks omitted).

II. Waiver and Release

It is undisputed that in order to become a member of Citi Bike, Corwin would have been required to assent to a release of claims as set forth in the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). This Agreement covered “any and all claims, injuries, demands, liabilities, causes of action (including statutory, contract, negligence, or other tort theories) . . . that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information or (b) Your use of any of the foregoing.” It required Corwin to “discharge all Released Persons for all Claims that You have or may have against any Released Person, except [**22] for Claims caused by the Released Person’s gross negligence or willful misconduct.” ECF 316-1, Release Agreement. As relevant here, the Agreement expressly included NYCBS and the City of New York, as well as all of NYCBS’s “owners, managers, affiliates, employees, agents, representatives, successors, and assigns” within the definition of “Released Persons.” Id.

Corwin moves for partial summary judgment to strike the City and NYCBS’s affirmative defenses based on the Release Agreement, arguing that the Agreement is ambiguous, contrary to law, and/or void as a matter of public policy. For their part, the City and NYCBS move for summary judgment arguing that Corwin’s negligence claims against them are waived by the release, with the exception of those sounding in gross negligence. Though it is not expressly named in the release, APD also argues that the claims against it are released because of its relationship to NYCBS.

As a threshold issue, the Court considers if there is a genuine dispute as to whether Corwin signed a release and, if so, its scope. Corwin argues that because defendants have failed to produce an actual copy of the Release Agreement with his electronic signature, or a [**23] copy of the Agreement as it existed when he became an annual member, defendants cannot demonstrate that he signed the waiver at all. Defendants have produced a declaration from Justin Ginsburgh, former General Manager of NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, that describes the membership process and states that Corwin would have [*488] had to agree to the terms of the Agreement in order to become a member. ECF No. 316, Ginsburgh Decl., ¶¶ 7-9. Ginsburgh also declares that the Release Agreement appended to his declaration, dated July 15, 2014, was a “true and complete copy of the User Agreement that was in effect in May 2013 when Mr. Corwin became a Citi Bike member.”3 Id. at ¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl., ¶¶ 2-3 (“The User Agreement . . . was fully in effect when plaintiff Ronald Corwin obtained his Citi Bike membership on June 25, 2013.”). Ginsburgh had previously noted in deposition testimony, however, that he was no longer in his General Manager position as of April 1, 2014, and therefore “[didn’t] know if any changes occurred [to the membership signup] after that.” ECF No. 360-6, Justin Ginsburgh Depo. [**24] at 463. Corwin stated in deposition testimony that he completed the membership application and “signed whatever it is [he] had to sign in order to get [his] Citi Bike pass,” but did not remember the contents of the Agreement or whether he had read it. ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.

3 The first Ginsburgh Declaration inaccurately references Corwin becoming a Citi Bike member in May 2013; in fact, Corwin became a Citi Bike member on June 25, 2013.

Corwin has failed to “set forth specific facts demonstrating that there is a genuine issue for trial,” Wright, 554 F.3d at 266, as to the existence and scope of the Agreement. Defendants have produced declaration testimony from Justin Ginsburgh, and Corwin has challenged the credibility of those statements. He has not, however, despite extensive discovery, introduced any evidence that there was an agreement with different terms in effect when Corwin became a Citi Bike member, or even any evidence that raises doubt as to whether the Agreement provided by defendants was in effect. Nor has Corwin provided any evidence that he was somehow able to sign up for his Citi Bike membership without following the process described by Ginsburgh, which required him to manifest assent to the Release Agreement. Therefore, Corwin has failed to raise a genuine dispute of material fact regarding the existence of a contract between [**25] the parties. Accordingly, whether or not Corwin’s claims are barred by the Release Agreement shall depend solely on the effectiveness of Corwin’s assent under the circumstances, and the enforceability of the waiver provisions as to the various defendants.

A. Unconscionability Analysis in Online “Clickwrap” Contracts

The first question for the Court’s consideration is whether, absent any overarching questions of statutory or common law public policy, the contract is enforceable on its own terms or whether, as Corwin argues, it is an “unconscionable and unenforceable contract of adhesion.” A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10, 534 N.E.2d 824, 537 N.Y.S.2d 787 (1988) (internal quotation marks and citations omitted); see also Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 207 (2d Cir. 1999).

The parties agree that the contract in question is a “clickwrap” agreement. Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of [*489] service. “[U]nder a clickwrap arrangement, [**26] potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2d Cir. 2004). Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.'” Meyer v. Kalanick, No. 15-CV-9796 (JSR), 199 F. Supp. 3d 752, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *6 (S.D.N.Y. July 29, 2016) (citing Cullinane v. Uber Techs., Inc., No. 14-CV-14750 (DPW), 2016 U.S. Dist. LEXIS 89540, 2016 WL 3751652, at *6 (D. Mass. July 11, 2016)). While the Court of Appeals has not categorically ruled on the issue, it has strongly implied that such contracts are presumptively enforceable. See, e.g., Starkey v. G Adventures, Inc., 796 F.3d 193, 197 (2d Cir. 2015) (noting that case would have been “simpler to resolve had [defendant] used a ‘clickwrap’ mechanism to provide reasonable notice and to obtain [plaintiff’s] assent”). Accordingly, most lower courts have enforced such contracts, absent extraordinary circumstances. See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 397 (E.D.N.Y. 2015) (collecting cases); Centrifugal Force, Inc. v. Softnet Commc’n, Inc., No. 08-CV-5463 (CM), 2011 U.S. Dist. LEXIS 20536, 2011 WL 744732, at *7 (S.D.N.Y. Mar. 1, 2011) (“In New York, clickwrap agreements are valid and enforceable contracts.”).

Nevertheless, a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability [**27] of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind themselves to contract terms.” Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002) (Sotomayor, J.). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways.” Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *8.

In Berkson, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide this inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement. Berkson, 97 F. Supp. 3d at 401 (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014)). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink. Id. (citing Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-CV-7654 (HLH), 2003 U.S. Dist. LEXIS 6483, 2003 WL 21406289, at *2 (C.D. Cal. Mar. 7, 2003)). Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” Id. at 401-02 (collecting cases refusing to enforce such agreements). Special attention [**28] should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. Id. at 402; see also Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *10 (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text [*490] about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted). Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.

In this case, NYCBS represents that “before the prospective member can proceed to pay for the membership, each person is shown the . . . ‘User Agreement.’ The User Agreement is displayed on the page in its own scrollable text box, which may also be opened in a new window for ease [**29] of viewing and printing.” ECF No. 316, Ginsburgh Decl., at ¶ 7. The “continue” button allowing Corwin to provide his payment information would not activate until Corwin clicked on a statement reading “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in [sic] User Agreement.” Id. at ¶¶ 8-9; Release Agreement, ECF No. 316-1 at 56. The Release Agreement itself, roughly 10 pages in length, contained a bold-faced and underlined section in larger font titled “Releases; Disclaimers; Limited Liability; Assumption of the Risk.” The text of the sections in question are in normal-sized font. Though Corwin stated that he had no specific recollection of reading and signing the Release Agreement, he did admit “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike pass.” ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.

Applying the considerations in Berkson, the Release Agreement is enforceable. The full scrollable text of the agreement was available on the same page a user must utilize to register, requiring no clicking of hyperlinks, and the user cannot continue to input his payment information until [**30] he signals assent to the agreement by taking the affirmative step of clicking a box. While it is possible to imagine clearer signaling of the importance of the waiver provisions to an unwary or unsophisticated consumer, the terms are not hidden or buried in an obscure part of the website, but rather are in plain view. Accordingly, the Release Agreement is not unconscionable, and Corwin is not entitled to strike the City and NYCBS’s affirmative defenses on this basis.

B. Ambiguity

To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims. See, e.g., Spancake v. Aggressor Fleet Ltd., No. 91-CV-5628 (DLC), 1995 U.S. Dist. LEXIS 7319, 1995 WL 322148, at *4 (S.D.N.Y. May 26, 1995). Corwin argues that the waiver is unenforceable due to ambiguity, finding a conflict between Section 8 (“Limited Liability”), which purports to release defendants from claims arising from riders’ “failure to wear a bicycle helmet while using a Citi Bike bicycle,” and Section 5, which does not list failing to wear a helmet as one of 11 “Prohibited Acts.” ECF 316-1, Release Agreement.

There is plainly no contradiction between Section 5 and Section 8. Section 5 lists actions, such as defacing a Citi Bike bicycle, transferring a bicycle to a non-member, or using a cellphone while riding that [**31] could presumably lead to contractual consequences for the member. Not wearing a helmet is not prohibited, which is also consistent with New York law allowing adult cyclists to ride without a helmet. See infra Part III.

Section 8 instead provides a non-exhaustive list of circumstances for which the [*491] contract seeks to limit liability. On its face, the fact that this list is not identical to that in Section 5 presents no contradiction, as they are presented for entirely different purposes.4 Moreover, the examples in Section 8 are meant only to illustrate some of the circumstances under which liability is to be limited; the section refers to limited liability for “any claim, including those that arise out of or relate to . . . your failure to wear a bicycle helmet while using Citi Bike bicycle.” Id. (emphasis added).

4 On wholly separate grounds, in Part III of its opinion, the Court grants Corwin summary judgment on Defendants’ affirmative defenses that Corwin’s failure to wear a bicycle helmet relieves them of liability because as a matter of New York law, the failure to wear a helmet goes only to the question of mitigation of damages. This does not, however, affect the clear and unambiguous nature of the waiver provisions.

As such, the Release Agreement is not void due to ambiguity.

C. Unenforceability on Public Policy Grounds

New York law “frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny.” Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979). Therefore, an exculpatory contract must express “in unequivocal terms the [**32] intention of the parties to relieve a defendant of liability for the defendant’s negligence.” Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); Roane v. Greenwich Swim Comm., 330 F. Supp. 2d 306, 321 (S.D.N.Y. 2004) (finding that appearance of the actual word “negligence” was significant in determining whether exculpatory contract was to be enforced). But “even an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced . . . if it is found to violate public policy . . . .” Ash v. New York Univ. Dental Ctr., 164 A.D.2d 366, 369, 564 N.Y.S.2d 308 (1st Dep’t 1990).

Public policy “is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Lubov v. Horing & Welikson, P.C., 72 A.D.3d 752, 753, 898 N.Y.S.2d 244 (2d Dep’t 2010) (citation omitted); see also Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216, 222, 872 N.Y.S.2d 578 (3d Dep’t 2009) (defining New York public policy as “the law of the [s]tate, whether found in the Constitution, the statutes or judicial records”) (citation omitted). Parties may, however, “agree to give up statutory or constitutional rights in a contract, as long as public policy is not violated.” J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 113, 119, 980 N.E.2d 940, 957 N.Y.S.2d 275 (2012).

Corwin argues that the Release Agreement violates three sources of public policy–New York City Administrative Code § 19-110, which provides that municipal permit holders may be held liable for their own negligence, New York General Obligations Law § 5-326, which invalidates exculpatory clauses in agreements with operators of recreational facilities, and [**33] the City’s non-delegable common-law duty to maintain the public streets.

i. New York City Administrative Code § 19-110

New York City Administrative Code (“NYCAC”) § 19-110 reads:

Liability for damage. In all cases where any person shall engage in any activity for which a permit is required pursuant to [the subchapter concerning streets [*492] and sidewalks], such person shall be liable for any damage which may be occasioned to persons, animals, or property by reason of negligence in any manner connected with the work.

Corwin argues that this statute represents a “public policy” intended to provide a “statutory remedy” against all persons who negligently perform work subject to the issuance of a permit. He notes that there was no explicit reference to waiving any rights or remedies under NYCAC § 19-110 in the Release Agreement, but even if there were, such a waiver would be unenforceable because of an alleged public policy to protect the public and ensure a remedy against any person acting under a permit to individuals injured by their negligence.

Case law regarding § 19-110 (and its predecessor provision, § 19-107) is sparse, and no court has held that § 19-110 provides a statutory right at all–much less a non-waivable statutory right elevated to [**34] the status of public policy. Instead, the available case law deals exclusively with whether the statute can be invoked as a basis for the City to seek indemnification, as opposed to contribution, from a negligent municipal contractor. See City of New York v. Consol. Edison Co., 198 A.D.2d 31, 31-32, 603 N.Y.S.2d 47 (1st Dep’t 1993) (finding that statute did not provide a basis for indemnification, but rather only that a contractor was responsible for its own negligence); Petrucci v. City of New York, 167 A.D.2d 29, 34, 569 N.Y.S.2d 624 (1st Dep’t 1991) (concluding that statute did not provide a basis for indemnification of the City, but only an “intent to render the contractor responsible for those damages actually caused to injured third parties or property by its own negligence or carelessness”); Libardi v. City of New York, 201 A.D.2d 539, 540-41, 607 N.Y.S.2d 717 (2d Dep’t 1994) (same).

This limited case law appears to do no more than clarify, in line with common-law negligence principles, that the City may seek contribution for damages to third parties occasioned by a negligent contractor or property owner conducting work pursuant to a municipal permit. It is plainly insufficient to constitute an overarching public policy guaranteeing Corwin the right to sue any contractor notwithstanding a contractual waiver. Indeed, Corwin has cited no case in which the statute was interpreted to provide a plaintiff a private right of action or a “statutory [**35] remedy” differing in any way from a common-law negligence claim. Accordingly, NYCAC § 19-110 cannot serve as a basis for invalidating the Release Agreement.

ii. New York General Obligations Law § 5-326

New York has a statutory restriction that invalidates exculpatory clauses or agreements between users and owners and operators of recreational facilities. N.Y. General Obligations Law (“GOL”) § 5-326 provides:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be [*493] deemed to be void as against public policy and wholly unenforceable.

The Release Agreement explicitly refers to this statute, noting that Released Persons are not “responsible or liable . . . except as may [**36] otherwise be limited by New York General Obligations Law 5-326.” ECF No. 316-1.

In order for GOL § 5-326 to apply, the plain text of the statute indicates that the agreement in question must (1) be made between a user and an owner or operator of a “place of amusement or recreation” or “similar establishment,” and (2) a fee or other compensation must be paid for “use” of a “facility” covered by the statute. Courts that have considered situations where equipment was rented and taken out of the control of the facility owner or operator have additionally considered whether the owner or operator exercised a substantial level of control over the environment in which the recreational activity takes place. See, e.g., Dumez v. Harbor Jet Ski, Inc., 117 Misc. 2d 249, 250, 458 N.Y.S.2d 119 (Sup. Ct. Niagara Cty. 1981).

Corwin argues that the Citi Bike program was primarily, or at the very least, substantially, a “recreational” program, and that the defendants’ business plan presupposed a significant number of daily and recreational users. He cites to a state court proceeding in which a neighborhood association challenged the installation of a Citi Bike station in a public park on the grounds that it was purely a commuter program. There, the City argued and the court held that the program fulfilled a valid recreational purpose. Friends of Petrosino Square v. Sadik-Khan, 42 Misc. 3d 226, 977 N.Y.S.2d 580 (Sup. Ct. N.Y. Cty. 2013), aff’d, 126 A.D.3d 470, 5 N.Y.S.3d 397 (1st Dep’t 2015). Therefore, [**37] according to Corwin, because the Citi Bike rental station where the accident occurred was a “place of recreation,” and he paid a fee to access the facility in the form of his annual membership, GOL § 5-326 operates to invalidate the exculpatory clause in the contract.5

5 Corwin also argues that the express language in the Release Agreement referencing GOL § 5-326 operates as an admission that negligence claims stemming from Citi Bike are not waivable and “is compelling proof of defendants’ recognition that [the] waiver is void.” ECF No. 361, Pl.’s Reply Mem. at 8. This is incorrect. Rather, the reference to GOL § 5-326 is plainly to ensure that the waiver provisions are not overbroad, putting users on notice that any such claims, were they to exist, would not be waived. It is not an admission that such claims actually could exist, or that in this case they do exist.

While the parties may dispute whether Corwin’s fateful Citi Bike ride was “recreational” in character, it is clear that the applicability of GOL § 5-326 cannot possibly turn on whether the given individual was using the bicycle recreationally or for commuting purposes. Defendants, moreover, argue that the statute does not apply because the membership fee does not entitle the user access or use of any physical facility; the fee is solely for the rental of a bike, while any individual is free to traverse the Citi Bike stations or New York City streets.

Several New York courts have held that GOL § 5-326 does not apply to accidents occurring on publicly accessible roadways, trails, or fields. See Deutsch v. Woodridge Segway, LLC, 117 A.D.3d 776, 777, 985 N.Y.S.2d 716 (2d Dep’t 2014) (statute not applied to plaintiff who rented a Segway vehicle and was taken on defendant-guided tour of muddy public trail “because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission [**38] fee for the use of the public trail over which the tour was conducted”); [*494] Brookner v. N.Y. Roadrunners Club, Inc., 51 A.D.3d 841, 842, 858 N.Y.S.2d 348 (2d Dep’t 2008) (statute not applied to marathon runner because entry fee “was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run” and “public roadway in Brooklyn where the plaintiff alleges he was injured is not a ‘place of amusement or recreation'”); Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d 758, 758, 673 N.Y.S.2d 181 (2d Dep’t 1998) (statute not applied to cyclist on paid bike tour “since the Verrazano Narrows Bridge, where the plaintiff . . . was injured, is not a ‘place of amusement or recreation'”); Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 634, 636 N.Y.S.2d 853 (2d Dep’t 1996) (statute not applied to accident occurring in softball game where no fee was paid to access field).

On the other hand, other courts have applied GOL § 5-326 to certain accidents on publicly accessible roadways, trails, or fields. See Williams v. City of Albany, 271 A.D.2d 855, 856-57, 706 N.Y.S.2d 240 (3d Dep’t 2000) (declining to follow Stuhlweissenburg and invalidating waiver for accident occurring in publicly accessible field for plaintiff playing in privately-operated flag football league); Filson v. Cold River Trail Rides, Inc., 242 A.D.2d 775, 777, 661 N.Y.S.2d 841 (3d Dep’t 1997) (invalidating waiver in horseback-riding accident guided by defendant but occurring on publicly accessible parkland); Wright v. Freeport Hudson Anglers, Inc., 2009 N.Y. Misc. LEXIS 4712 (Sup Ct. Nassau Cnty. Apr. 8, 2009) (invalidating waiver for sea accident occurring in fishing tournament).

In seeking to reconcile [**39] the case law, Defendants point out that every court to consider the applicability of GOL § 5-326 to an accident occurring on a public, paved, urban street has found the statute to be inapplicable. Corwin, for his part, argues that these cases are inapposite because the bike station was not part of a public road at all, but rather a separate “recreational facility” that happened to be located on a public road.6

6 If true, this, of course, would contradict Corwin’s argument that the Release Agreement is unenforceable as to the City because it purports to waive the City’s non-delegable duty to maintain its roads.

Considering the case law and the legislative intent animating the statute, the Court finds as a matter of law that a Citi Bike station is not a “facility” for the purposes of § 5-326. The stations are plainly more properly characterized as storage facilities for bicycles rather than facilities for recreation in and of themselves. Even if riders incidentally enter or pass through the stations on their bicycles, or if the design of the particular bike station that was the site of the accident encouraged riders to pass through it, this does not turn them into “places of amusement or recreation.” Assuming without deciding that Citi Bike is properly characterized as a primarily recreational program, the intended sites for that recreational use are the City’s roadways and bike lanes–the very types of [**40] paved public thoroughfares that courts have held are not “places of amusement or recreation.” See, e.g., Brookner, 51 A.D.3d at 842. Therefore, the station can only be defined in two ways: either it is part of the public road on which riders are meant to engage in recreational activity, or it is a storage facility that is not part of the roadway. Either way, it is not a “place of amusement or recreation” or “similar establishment,” as required to trigger the statute. Accordingly, GOL § 5-326 cannot serve as a basis for invalidating the Release Agreement.

iii. City’s Common Law Duty to Maintain the Roads

New York courts have long held “that a municipality owe[s] to the public the absolute [*495] duty of keeping its streets in a reasonably safe condition.” Friedman v. State, 67 N.Y.2d 271, 283, 493 N.E.2d 893, 502 N.Y.S.2d 669 (1986) (quotations omitted); see also Wittorf v. City of New York., 23 N.Y.3d 473, 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 (2014) (“[A] municipality has a duty to maintain its roads and highways in a reasonably safe condition and liability will flow for injuries resulting from a breach of that duty.”). As this duty has been characterized as “absolute” and “non-delegable” (though subject to the doctrine of qualified immunity, see infra Part IV), Corwin argues that the City’s duty applies to the bike station and wheel stop at issue and cannot be released by means of a private contract. The City [**41] contends that while it does indeed have a duty to maintain public roadways, a contractual waiver of this duty is permissible and would not offend any overarching public policy.

Before considering whether the City’s duty to maintain public roadways may be released by contract to a voluntary participant in a public transportation program such as Citi Bike, the Court must first determine whether the Citi Bike station where Corwin’s accident occurred properly falls within the scope of that duty. Indeed, defendants argue repeatedly that cyclists are not intended to use bike station areas as a travel lane, and that those facilities are intended only for the storage, retrieval, and return of bicycles. They contend that the presence of the concrete wheel stops and surrounding cross-hatching, white thermoplastic striping, and flexible delineators plainly distinguished the bike station from the adjoining roadway, and should have indicated to a cyclist that it was an area in which cycling was not permitted.

In determining the scope of a municipality’s duty, New York courts have generally considered whether the municipality affirmatively undertook to provide an improved area adjacent to the road, [**42] such as a shoulder. If so, it has generally been held to be responsible for its maintenance. See Bottalico v. State, 59 N.Y.2d 302, 305, 451 N.E.2d 454, 464 N.Y.S.2d 707 (1983) (finding highway shoulder to be within scope of duty because it was “both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon”). The touchstone of this analysis is foreseeability. It does not necessarily depend on the reasonableness of a plaintiff’s conduct. A municipality is required to “maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver’s negligence.” Id. at 304; see also Stiuso v. City of New York, 87 N.Y.2d 889, 891, 663 N.E.2d 321, 639 N.Y.S.2d 1009 (1995) (same); Saulpaugh v. State, 132 A.D.2d 781, 781-82, 517 N.Y.S.2d 328 (4th Dep’t 1987) (same).

On the other hand, no duty exists where a paved roadway “is more than adequate for safe public passage and travel beyond those limits is neither contemplated nor foreseeable.” Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 385 N.E.2d 581, 412 N.Y.S.2d 842 (1978) (noting that “utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way . . . [b]ut for the careful driver, the placement of these items near the pavement creates no unreasonable danger”). The courts have repeatedly denied recovery for roadway users whose injury stemmed from the lack of maintenance of areas near the roadway whose use was unforeseeable even in emergencies. [**43] See, e.g., Preston v. State, 6 A.D.3d 835, 836, 775 N.Y.S.2d 115 (3d Dep’t 2004) (no recovery for driver hitting tree seven feet from the edge of the travel line, where “nothing in the record indicat[ed] [*496] that defendant affirmatively took any action to create or maintain the area”); Green v. Cty. of Allegany, 300 A.D.2d 1077, 1077, 752 N.Y.S.2d 487 (4th Dep’t 2002) (no recovery for failure to maintain drainage ditch and culvert headwall); Muller v. State, 240 A.D.2d 881, 882, 658 N.Y.S.2d 727 (3d Dep’t 1997) (no recovery for failure to maintain drainage ditch headwall beyond the traversable shoulder where the “emergency use of such additional area was neither contemplated nor foreseeable”).

The record does not demonstrate that the City actively contemplated that cyclists would be passing through Citi Bike stations; indeed, precisely the alleged failure to contemplate this possibility forms the basis for Corwin’s argument that the City is not entitled to qualified immunity on this issue. The Court does find, however, that the possibility of cyclists passing through Citi Bike stations located in on-street parking lanes was foreseeable. At times, defendants’ representatives have seemed to admit that riding in the parking lane was, if not expressly permitted, at least a common practice of cyclists. ECF No. 335-24, Jon Orcutt 09/03/15 Depo. at 396-97. (“There are plenty of places with a wide parking lane . . . where [**44] a wide parking lane is kind of implemented as a stealth bike lane.”) This conclusion is buttressed by a brief traffic study conducted by Corwin’s expert, James M. Green. ECF No. 335, Green Decl. ¶¶ 35, 57 (finding that cyclists regularly circulated through the station at issue and arguing that this was a “foreseeable consequence of this Station design,” which was wider and jutted further out into the traffic lane). But even absent the expert’s study, logic dictates that, just as an automobile is not generally permitted to drive on an improved shoulder but may swerve into it (negligently or not) in a situation where the circumstances so require, it is foreseeable that a cyclist such as Corwin may (negligently or not) enter into the Citi Bike station seeking safety when feeling pressured by tight traffic.

This is, perhaps, an imperfect analogy: whereas the express and primary purpose of an improved highway shoulder is to provide a safe outlet for motorists in emergency situations, this is not so for Citi Bike stations, whose primary purpose is the storage, retrieval, and return of bicycles. Nevertheless, the applicable case law does not require that the primary purpose of the improved [**45] space abutting the road be for such emergency uses; as stated above, foreseeability is sufficient to trigger the municipality’s duty. Nor have courts drawn distinctions between motorists and other roadway users; instead, they have found that cyclists may bring claims predicated on state or municipal government’s failure to maintain roadways. See, e.g., Cotty v. Town of Southampton, 64 A.D.3d 251, 255, 880 N.Y.S.2d 656 (2d Dep’t 2009) (primary assumption of risk doctrine “not designed to relieve a municipality of its duty to maintain its roadways in a safe condition . . . and such a result does not become justifiable merely because the roadway happens to be in use by a person operating a bicycle”); Caraballo v. City of Yonkers, 54 A.D.3d 796, 796-97, 865 N.Y.S.2d 229 (2d Dep’t 2008) (“[T[he infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity of recreational noncompetitive bicycling, and using the bicycle as a means of transportation.” (citations omitted)).

Finally, there can be no question that the duty to maintain the roads applies not only to the physical condition of the road itself, but also to the placement of [*497] obstacles or hazards that make use of the road unsafe. Annino v. City of Utica, 276 N.Y. 192, 196-97, 11 N.E.2d 726 (1937) (municipality found liable [**46] for a tripod dangerously placed over a manhole cover so as to constitute a dangerous obstruction); Whitney v. Town of Ticonderoga, 127 N.Y. 40, 44, 27 N.E. 403 (1891) (“[T]he impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway.”).

Accordingly, the Court finds that the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads. Therefore, the Court must now decide whether the City can waive this duty by contract as a condition of participating in the Citi Bike public transportation program.

“[E]ven an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced by the courts . . . if it is found to violate public policy either by way of conflicting with an overriding public interest or because it constitutes an abuse of a special relationship between the parties, or both.” Ash, 164 A.D.2d at 369. Indeed, when choosing to invalidate such clauses, courts have often analyzed the “public interest” and “special relationship” prongs together. See id. at 369-71 (invalidating exculpatory clause between dental clinic and patient both [**47] because of the public interest in protecting the welfare of its citizens and ensuring medical quality and the uniqueness of the physician-patient relationship); Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 247-48, 194 N.E. 692 (1935) (invalidating clause between common carrier and passenger because allowing public service corporations to disclaim all liability for negligence by contract is contrary to public interest, and passengers are not typically given a choice in contracting); Johnston v. Fargo, 184 N.Y. 379, 384-85, 77 N.E. 388 (1906) (invalidating exculpatory clause between employer and employees both because of the state interest in the “maintenance of proper and reasonable safeguards to human life and limb” and the unequal bargaining power between the parties). On the other hand, courts have readily enforced exculpatory clauses in arm’s length commercial transactions between two private parties, see, e.g., Florence v. Merchants Cent. Alarm Co., Inc., 51 N.Y.2d 793, 412 N.E.2d 1317, 433 N.Y.S.2d 91 (1980), when not expressly prohibited by statute.

No case has considered the specific question of whether a municipality’s duty to keep its streets in a reasonably safe condition for travel can be waived by contract. For almost two centuries, however, New York state courts have spoken of an “absolute” duty that could not be delegated to third parties. See Annino, 276 N.Y. at 196 (1937) (“The city owed to the public the absolute duty of [**48] keeping its streets in a reasonably safe condition for travel and was bound to exercise reasonable care to accomplish that end.”) (emphasis added) (citations omitted); Storrs v. City of Utica, 17 N.Y. 104, 108-09 (1858) (finding that municipal corporations “owe[] to the public the duty of keeping its streets in a safe condition for travel” and “although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried on . . . [and cannot] either avoid indictment in behalf of the public or its liability to individuals who are injured.”). The only significant exception to this nondelegable duty is that “it is intended to protect the traveling public”–therefore, [*498] the duty has been held not to extend to injured employees of independent contractors working on road construction projects. Lopes v. Rostad, 45 N.Y.2d 617, 624-25, 384 N.E.2d 673, 412 N.Y.S.2d 127 (1978). In reaching this conclusion, the Lopes court stated that, because the government is responsible for providing the public with roads and highways for travel:

[w]ith this responsibility comes the further obligation to assure, insofar as is reasonably possible, that the thoroughfares of travel will be constructed and maintained in a safe condition. A governmental body would hardly [**49] have fulfilled its responsibility if the roadways it provided for public use were a source of public danger. It is for this reason that “[g]overnments have ever been most zealous to afford special protection to the users of streets, highways and other means of transportation” (1936 Report of NY, Law Rev Comm, p 955).

Id. at 625.

Corwin, a cyclist passing through a bike station located in a parking lane on a public street, falls within the category of those deemed protected by a municipality’s duty to maintain its roadways. While it is certainly understandable that the City would seek to limit its exposure to liability stemming from those using the Citi Bike program, its desire to see this salutary transportation initiative succeed is not sufficiently related to the key, centuries-old public policy of guaranteeing the safety of the users of City streets. It is this public policy that underlies its non-delegable duty to keep streets and roadways safe. The City has designed a public transportation system that involves physical installations in parking lanes on heavily transited streets, and permitted a contractor, NYCBS, to implement and manage that program. Even though the purported liability waiver is confined [**50] to road conditions in the circumscribed area of the bike stations, the Court finds that the enforcement of such a waiver against over a million Citi Bike users is contrary to the public policy that dictates that the City has the duty to guarantee road safety.7

7 The waiver would certainly be effective as to claims unrelated to road conditions, such as, for example, the quality of the bicycles or the malfunctioning of the rental kiosks.

After all, the fact that Corwin was riding a Citi Bike, as opposed to his own bicycle, at the time of his accident was purely coincidental. The City does not articulate any public policy in barring Corwin’s claim but permitting a claim brought by a non-member of Citi Bike who strikes the same wheel stop while riding his own bicycle. There is no basis for immunizing the City from suit by one class of cyclists–who participate in a highly publicized transportation program such as Citi Bike–while allowing non-Citi Bike users to bring suit for the same accident occurring in the same area of the street. Simply put, the law clearly imposes upon the City a duty to ensure road safety for all pedestrians, cyclists, motorists, and road users on all sections of the road that are foreseeably transitable.

At oral argument, counsel for the City indicated that the execution of transportation programs such as Citi Bike would not be feasible without [**51] such waivers of liability. But the City is not left wholly unprotected. As discussed in Parts IV and V of this opinion, the finder of fact may determine that the City is entitled to qualified immunity in regards to the station design, or that the City was not “affirmatively negligent” and is thus protected by the notice provisions of New York Administrative Code § 7-201. Therefore, the Court does not believe that its invalidation of the [*499] waiver as to road conditions and hazards within the bike stations threatens the viability of the Citi Bike program.

D. Conclusion

For the foregoing reasons, the Release Agreement effectively releases Corwin’s common-law negligence claims against NYCBS, allowing only claims of gross negligence to proceed against it. The waiver does not apply to the City, however, because such a release of the City’s duty would be contrary to public policy; accordingly, Corwin may proceed with his common-law negligence claims against the City. The Court need not decide if the APD is a “Released Person” under the Agreement, as it grants summary judgment to APD on all claims in Part VIII of this opinion on other grounds.

III. Affirmative Defenses Based on Corwin’s Failure to Wear [**52] a Helmet

Defendants have set out various affirmative defenses–including comparative negligence, primary assumption of the risk, and failure to mitigate damages–premised on the uncontested fact that Corwin was not wearing a bicycle helmet at the time of the crash. Corwin moves for partial summary judgment on all of these defenses, arguing that there was no statutory obligation that he do so, that the City and NYCBS themselves represented that wearing a helmet was unnecessary, and that New York Vehicle and Traffic Law (“VTL”) § 1238(7) and case law in New York and other jurisdictions expressly prohibits such conduct from being considered for the purposes of liability or damages.

As a preliminary matter, Corwin argues that defendants have failed to produce sufficient evidence to raise a factual question as to whether there was an unreasonable risk of a head injury while riding a Citi Bike without a helmet. Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party . . . .” Chambers, 43 F.3d at 37. There are disputed questions of material fact in this case as to both (a) whether a reasonably prudent person in Corwin’s [**53] circumstances would have worn a helmet and (b) whether wearing such a helmet would have mitigated the damages Corwin suffered. See, e.g., ECF No. 344, Decl. of Elizabeth McCalley (arguing that Corwin would not have sustained many of his severe injuries had he worn a helmet).

There is no dispute that Corwin was not obligated to wear a helmet while riding a Citi Bike or any other bicycle; unlike the seatbelt requirements of N.Y. VTL § 1229-c, there is no statutory obligation for an adult bicyclist to wear a helmet while riding a bike on a public road. N.Y. VTL § 1238(5) does require children under the age of fourteen to do so, but imposes no affirmative obligations on individuals over that age. A subsection of the same statute also indicates that “the failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not in any way bar, preclude or foreclose an action for personal injury or wrongful death by or on behalf of such person, nor in any way diminish or reduce the damages recoverable in any such action.” VTL § 1238(7); see also Lamica v. Precore, 273 A.D.2d 647, 647-48, 709 N.Y.S.2d 694 (3d Dep’t 2000) (in accident involving helmetless child on bicycle, dismissing defendants’ counterclaim that parents were negligent [**54] for failing to ensure child wore helmet). Therefore, Corwin argues, if New York has seen fit to preclude expressly the consideration of helmet evidence for either liability or damages purposes even when wearing a helmet is mandated [*500] by law, surely the failure to wear a helmet by someone not obligated to do so by law should be similarly inadmissible.

The fact that New York has categorically barred the consideration of such evidence in a statute aimed at the protection of children does not, however, imply that the state has a general public policy against the admission of such evidence for all bicycle riders. Indeed, though Corwin argues that it would be “anomalous and irrational” to admit helmet evidence for an older rider under no legal obligation to wear a helmet, there is a clear and obvious rationale for the limited reach of the statute: a desire to prevent families from being burdened with costs stemming from accidents occurring on account of their young children’s inability to perceive risks, and a determination that parents should not be found negligent for failing to ensure that their children wear helmets. No court has interpreted VTL § 1238(7) to stand for a general public policy that the [**55] failure to wear a helmet is inadmissible for purposes of measuring comparative negligence or mitigation of damages, and the Court declines to do so today.

While the New York Court of Appeals has not spoken authoritatively on the specific question of whether the non-use of a bicycle helmet is admissible under such circumstances, the framework that it adopted regarding the non-use of seat belts in automobiles is instructive. At a time when no law mandated that occupants of a passenger car wore seat belts, the court explicitly rejected the failure to wear a seat belt as a basis for contributory negligence8 or primary assumption of the risk, but concluded that:

nonuse of an available seat belt . . . is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. However . . . the plaintiff’s nonuse of an available seat belt should be strictly limited to the jury’s determination of the plaintiff’s damages and should not be considered by the triers of fact in resolving the issue of liability. [**56]

Spier v. Barker, 35 N.Y.2d 444, 449-50, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974).

8 Though the Spier decision was rendered before New York’s adoption of the comparative fault system and therefore discussed only if a plaintiff would be wholly barred from recovery under the then-existing doctrine of contributory negligence, New York courts have consistently considered seat belt evidence exclusively for purposes of mitigation of damages, and not for the apportionment of comparative fault. See, e.g., Stein v. Penatello, 185 A.D.2d 976, 976-77, 587 N.Y.S.2d 37 (2d Dep’t 1992).

Therefore, in cases involving the failure to wear a seat belt, New York law imposes a pre-accident obligation to mitigate damages, and the burden of proving that the injured party failed to do so rests upon the defendant. Davis v. Davis, 49 A.D.2d 1024, 1024, 374 N.Y.S.2d 482 (4th Dep’t 1975). Lower New York courts have applied the same principles to other types of protective gear as well. See, e.g., Penzell v. State, 120 Misc. 2d 600, 466 N.Y.S.2d 562, 567 (Ct. Cl. 1983) (motorcycle helmets); Giannetti v. Darling Del. Carting Co., 175 Misc. 2d 1, 666 N.Y.S.2d 372, 374-76 (Sup. Ct. Suffolk Cnty. 1997) (safety gloves in fast food restaurant). And, indeed, in the state court proceedings parallel to this case, the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how [*501] damages, if any, should be assessed.” Corwin v. City of New York, 141 A.D.3d 484, 490, 36 N.Y.S.3d 118 (1st Dep’t 2016) (citation omitted).9

9 State courts in other jurisdictions have also drawn analogies between seat belt and helmet use. See, e.g., Stehlik v. Rhoads, 2002 WI 73, 253 Wis. 2d 477, 645 N.W.2d 889 (Wis. 2002) (same principles govern seat belt and helmet defenses for ATV rider); Meyer v. City of Des Moines, 475 N.W.2d 181, 186 (Iowa 1991) (same for moped rider); Warfel v. Cheney, 157 Ariz. 424, 758 P.2d 1326 (Ariz. App. 1988) (same for motorcyclist).

To be sure, some courts across the country have reached contrary conclusions.10 See, e.g., Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 647-48 (D.N.J. 1997) (noting that nothing in federal or state law alerts adult cyclists that their rights may be prejudiced by failure to wear a helmet, finding fewer safety concerns with helmetless biking and rejecting analogy to seat belt laws); Walden v. State, 250 Mont. 132, 818 P.2d 1190, 1196-97 (Mont. 1991) (holding same in state where evidence [**57] of seat belt use is inadmissible for mitigation of damages purposes). The decision in Corwin, however, and the logic of Spier and the New York cases extending it beyond the seat belt domain, compel denial of Corwin’s motion for summary judgment as it pertains to the affirmative defenses relating to mitigation of damages.

10 Corwin relies on Phelan v. State of New York, 11 Misc. 3d 151, 804 N.Y.S.2d 886 (N.Y. Ct. Cl. 2005), where the New York Court of Claims declined to consider a bicyclist’s non-use of a helmet in mitigation of damages. The case, however, is distinguishable as “no persuasive testimony, medical or otherwise, was proffered to establish that [plaintiff’s] injuries would have been either avoided or reduced had she worn a helmet.” Id. at 167. Therefore, the defendant failed to make even a prima facie case that damages should be mitigated by the decedent’s failure to wear a helmet. To the extent that Phelan also based the decision on the fact the “[d]ecedent was not required to wear a helmet [by law],” this is inconsistent with the Appellate Division’s decision in Corwin, 141 A.D.3d 484, 36 N.Y.S.3d 118, and the logic of Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916.

Nevertheless, even as Spier and its progeny indicate that Corwin’s non-use of a helmet will be admissible for the purposes of calculating damages, the cases also hold that such evidence is inadmissible on questions of liability. Therefore, defendants shall not be permitted to argue that Corwin was comparatively negligent for failing to wear a helmet.11 For the same reason and for the reasons expressed in Part VI of this Opinion, defendants will also not be permitted to argue that Corwin’s claims are barred by the doctrine of primary assumption of risk. See also Cotty, 64 A.D.3d at 256 (2d Dep’t 2009) (“[R]iding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine.”).

11 Of course, defendants may still argue at trial that Corwin was comparatively negligent for other reasons, including, inter alia, the speed, manner, and location of where he was riding his bicycle.

Accordingly, Corwin’s motion for summary judgment is DENIED as to the City’s Seventh and Ninth affirmative defenses (ECF. No. 200), NYCBS’s Sixth affirmative [**58] defense (ECF No. 199), and Metro Express’s Sixth affirmative defense (ECF No. 213) concerning the relevance of his non-use of a helmet to mitigation of damages, and GRANTED as the City’s Second and Eighth affirmative defenses, NYCBS’s First and Seventh affirmative defenses and Metro Express’s Second and Seventh affirmative defenses, inasmuch as those defenses assert the relevance of his non-use of a helmet to comparative negligence and assumption of the risk. Sealcoat [*502] did not explicitly reference Corwin’s failure to use a helmet as an affirmative defense, (ECF No. 211) and in Part VIII, the Court grants summary judgment to APD and APDNY, thus rendering the question of summary judgment on their First affirmative defense moot.

IV. Qualified Immunity

A. City’s Qualified Immunity for Bike Station Design and Wheel Stop Placement

The City of New York moves for summary judgment on the grounds that its involvement in the design and planning of the Citi Bike program is a uniquely governmental function for which it is entitled to qualified immunity as a matter of law. See Valdez v. City of New York, 18 N.Y.3d 69, 76, 960 N.E.2d 356, 936 N.Y.S.2d 587 (2011) (“Even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental [**59] function can avoid liability if it . . . proves that the alleged negligent act or omission involved the exercise of discretionary authority.”).

“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.” Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 995 N.E.2d 131, 972 N.Y.S.2d 169 (2013). A municipality engages in governmental functions when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers,” and in proprietary functions when “its activities essentially substitute for or supplement traditionally private enterprises.” Id. (citations omitted). If a municipality acts in a governmental capacity, the plaintiff must prove that he was owed a special duty, and that the exercise of governmental authority was not discretionary. Turturro v. City of New York, 28 N.Y.3d 469, 478-79, 45 N.Y.S.3d 874, 68 N.E.3d 693 (2016).

Traffic planning decisions, including decisions about the design of roads and other facilities, are proprietary functions, arising from a municipality’s “proprietary duty to keep its roads and highways in a reasonably safe condition.” Wittorf, 23 N.Y.3d at 480. This duty, while “nondelegable . . . is measured by the courts with consideration given [**60] to the proper limits on intrusion into the municipality’s planning and decision-making functions.” Friedman, 67 N.Y.2d at 283 (internal quotation marks and citations omitted). As such, “in the specific proprietary field of roadway safety, a municipality is afforded ‘a qualified immunity from liability arising out of a highway planning decision'” under certain circumstances. Turturro, 28 N.Y.3d at 479-80 (quoting Friedman, 67 N.Y.2d at 283)).

Such immunity arises only when the defendant can “demonstrate that a public planning body considered and passed upon the same question of risk as would go to a jury in the case at issue.” Jackson v. N.Y. City Transit Auth., 30 A.D.3d 289, 290-91, 818 N.Y.S.2d 32 (1st Dep’t 2006) (finding general evaluation of buses referencing passengers’ ability to grab onto overhead racks insufficient to grant qualified immunity on claim that transit authority should have installed grab bars and handholds); Leon v. N.Y. City Transit Auth., 96 A.D.3d 554, 554-55, 947 N.Y.S.2d 33 (1st Dep’t 2012) (denying qualified immunity for passenger injured by falling in gap between train car and platform when City had only studied the risk that train would scrape platform); see [*503] also Turturro, 28 N.Y.3d at 483 (no qualified immunity for City’s failure to study speeding traffic on avenue); Poveromo v. Town of Cortlandt, 127 A.D.3d 835, 837, 6 N.Y.S.3d 617 (2d Dep’t 2015) (no qualified immunity for municipality’s failure to install certain traffic devices at an intersection absent a study); Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637 (2d Dep’t 2011) (no qualified immunity for design of traffic [**61] intersection in absence of any pedestrian traffic studies); cf. Levi v. Kratovac, 35 A.D.3d 548, 549, 827 N.Y.S.2d 196 (2d Dep’t 2006) (qualified immunity granted for design of traffic intersection pursuant to a pedestrian safety study and reasonable traffic plan).

In light of these principles, the key question is whether the City’s planning of the Citi Bike program “passed upon the same question of risk” that this case presents–namely, that the placement of unpainted concrete wheel stops within Citi Bike stations could pose a tripping danger to cyclists. The City describes a collaborative process between it and APD based on its experiences with “bike corrals” that employed similar features, including wheel stops. ECF No. 293, City St. ¶¶ 40-42, 50. The City indicates that it viewed wheel stops as “the most important safety feature that was also installed in 2011.” Id. ¶ 46. Accordingly, the result of its collaboration with APD was a set of guidelines including the use of “non-permanent bollards, wheel stops, and paint markings.” Id. ¶ 55; ECF No. 289-19, 04/23/12 Station Siting Guidelines at 11. The City notes that APD and APDNY considered a wheel stop to be a necessary feature to protect the bike station from vehicles encroaching on the station and [**62] damaging the equipment or injuring individuals who may be within the station. City St. ¶ 58; ECF No. 289-3, Adrian Witte 08/14/15 Depo. at 20-21; ECF No. 289-5, Jeff Olson 09/29/15 Depo. at 410-11. The City did not, however, approve of the use of wheel stops that extend outside of the parking lane and into the travel lane. City St. ¶ 66; ECF No. 291, Sameer Barkho Decl. ¶ 10. The City determined that a yellow and black object marker, which had been included in the original design of some bike corrals, was “optional” because the on-street bike parking station sat in a parking lane and not a travel lane, and “pavement markings were more than sufficient to signal to an approaching motorist or bicyclist the presence of the on-street bike parking station and the presence of the wheel stop in the parking lane.” Id. ¶ 11. On the contrary, wheel stops would be situated within a white painted rectangular box with “white paint markings forming diagonal lines within the rectangular box.” Id. at ¶ 12.

The record plainly indicates that the decision to install concrete wheel stops in Citi Bike stations was the product of careful consideration and deliberation between the City and APD’s design and [**63] engineering experts. This mere fact, however, does not suffice for the City to be entitled to qualified immunity as a matter of law. Corwin does not merely seek to have the fact finder “examine the criteria that were considered by the State’s professional staff, emphasize factors allegedly overlooked, and, with the benefit of hindsight, rule that the studies were inadequate as a matter of law.” Friedman, 67 N.Y.2d at 285-86. Rather, he argues that though the City considered the need and efficacy of wheel stop placement to prevent cars from encroaching into the stations and harming individuals or property, it conducted no studies whatsoever as to whether such wheel stops could constitute tripping hazards for cyclists passing through such stations.

[*504] Though it is a close question, because the City has obviously given the coloring, placement, and demarcation of wheel stops some thought, the Court finds that there is a genuine dispute of material fact as to whether the City studied or “passed upon the same question of risk” presented in this case. While there is extensive testimony in the record that the City believed that wheel stops were of great importance in protecting stations from automobiles, the City has presented [**64] no specific study that suggests that it considered the effect of wheel stop placement or design on the safety of pedestrians or cyclists passing through the station, or whether the City considered that the wheel stops might be in the foreseeable paths of cyclists who, by custom or necessity, pass through the Citi Bike station footprints. In particular, it is not clear on what basis the City decided that object markers were to be made “optional,” or if the City considered the adequacy of shorter wheel stops that would extend no further into the parking lane than the bikes themselves. Therefore, as a reasonable fact-finder could find that the City did not study or pass on the “same question of risk,” the City is not entitled to qualified immunity as a matter of law on the specific question of wheel stop placement. At trial, the jury will be asked special interrogatories to resolve these disputed facts.

B. City’s Qualified Immunity for Failure to Provide Bicycle Helmets to Citi Bike Users

The City also moves for summary judgment on the basis of qualified immunity on Corwin’s claims that “the intentional failure and refusal of the Defendants to design Citi Bike to include a convenient system [**65] of helmet rentals–as in place in Melbourne, Vancouver and Seattle–or otherwise provide helmets at all Citi Bike sites, was negligent . . . .” ECF No. 192, Second Am. Compl. ¶ 352.

The record plainly demonstrates that the City’s decision not to mandate or provide helmets to Citi Bike users was the fruit of a well-reasoned policy based on extensive study of the “same question of risk as would go to a jury in the case at issue.” Jackson, 30 A.D.3d at 290. As early as 2009, the City’s Feasibility Study noted that “increasing the number of bicyclists is one of the most reliable ways to increase bicyclist safety,” and cast doubt on the feasibility of helmet distribution. City St. ¶ 4; ECF No. 290-1, Bike Share Feasibility Study. The director of the City’s Bike Share Unit stated that the City found that “mandatory helmet laws decreased bicycle ridership in general and decreased participation in bike share programs in particular. [The City] considered statistics showing that mandatory helmets laws actually decreased the safety of bicycling . . . [and] bicycle riders wearing helmets tend to ride more recklessly than riders who do not.” ECF No. 290, John Frost Decl. ¶ 5. The City specifically noted that in Melbourne, [**66] Australia, mandatory helmet laws resulted in a lowered rate of bicycle usage. City St. ¶ 13; ECF No. 289-2, Kate Fillin-Yeh 08/20/15 Depo. at 46-48. The City also specifically considered installing automatic helmet rental machines and rejected the proposal on hygiene and structural integrity grounds in public comments justifying the policy choice. ECF No. 290, John Frost Decl. ¶ 6; ECF No. 289-1, Stephanie Levinsky-Shaw 08/12/15 Depo. at 222. Nevertheless, the City encouraged bicycle helmet use by distributing discount voucher coupons for the purchase of helmets to annual members and expanding helmet fitting and giveaway programs. ECF No. 290, Frost Decl. ¶ 7; ECF No. 289-2, Fillin-Yeh Depo. at 56, 60.

[*505] Contrary to Corwin’s contentions, the fact that Defendants may raise the issue of his non-use of a helmet to prove a failure to mitigate damages does not affect the City’s qualified immunity on this issue. Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.” [**67] Corwin, 141 A.D.3d at 495 (Andrias, J., dissenting). He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. See Weiss v. Fote, 7 N.Y.2d 579, 588, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960) (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.

V. New York City Administrative Code § 7-201

New York City Administrative Code § 7-201(c)(2) provides that:

No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street . . . being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation . . . or where there was previous injury to person or property as a result of the . . . condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the . . . condition, and there was a failure or neglect [**68] within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.

Popularly known as the “Pothole Law,” the purpose of § 7-201(c)(2) is to prevent municipal liability for “nonfeasance” and to limit it to cases where the municipality had actual notice and opportunity to correct the hazardous condition. Katz v. City of New York, 87 N.Y.2d 241, 243, 661 N.E.2d 1374, 638 N.Y.S.2d 593 (1995). It is uncontested that the City did not have written notice of the installation of the specific wheel stop at the Madison Avenue end of the Citi Bike station where the crash occurred until after the accident, and that the drawing accompanying the permit does not show a wheel stop at that location. City St. ¶¶ 107-12. City records do not demonstrate any written complaints or claims of injury regarding a wheel stop at that location. Id. at ¶¶ 111-13.

There are, however, two exceptions to § 7-201(c)(2)–“that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” Yarborough v. City of New York, 10 N.Y.3d 726, 728, 882 N.E.2d 873, 853 N.Y.S.2d 261 (2008) (citation omitted).

Corwin does not merely allege that the City failed to remediate a dangerous condition created by a third party; indeed, his entire theory of liability [**69] is predicated on the premise that the City was affirmatively negligent in the design and placement of Citi Bike stations and wheel stops in the system as a whole. Additionally, he argues that the City was on notice of contractors’ failures to install stations as per plan specifications and yet failed to monitor them effectively, and ultimately approved an [*506] identical policy of putting wheel stops on both ends of Citi Bike stations. ECF No. 335-33, NYC Comptroller Audit; ECF No. 336-25, Station Plan w/ 2 Wheel Stops. The City, for its part, notes that neither it nor NYCBS, with whom it had a contractual relationship, actually installed the wheel stop at issue; rather, it alleges that it was installed by Sealcoat, a contractor of MetroExpress, who itself was NYCBS’s contractor. City St. ¶¶ 83-84.

The Court finds that there is a genuine dispute of material fact as to whether the City was affirmatively negligent so as to lose the written notice protections of § 7-201(c)(2). While Corwin cannot produce “smoking gun” evidence that the City affirmatively directed NYCBS or its agents to install the specific wheel stop in question, Corwin does provide evidence indicating that similar wheel stops were installed [**70] elsewhere in the City and that modifications to station plan installations were often done informally. See ECF No. 368-6 (10/30/2013 email from Dani Simons, NYCBS, to Stephanie Levitsky, DOT, stating “I do not know why [the wheel stop is] not in the drawings. I do know that [NYCBS directors] Hasib [Ikramullah] and Michael [Pellegrino] have both told me that we’ve started putting them on the cross-walk side of stations in high traffic areas . . . .”); ECF No. 336-19 (07/01/2013 email from Stephanie Levinsky to Jon Orcutt referencing “numerous on the fly modification[s]”); ECF No. 368-8 (May 15, 2013 email from DOT to NYCBS referencing “supplemental street treatments” not on the initial plan diagrams).

This evidence could lead a reasonable finder of fact to conclude that either the specific wheel stop in question, or all wheel stops that enter into the foreseeable pathway of a cyclist, were installed pursuant to affirmative acts of negligence by the City. The fact that the City had no direct contractual relationship or knowledge of the involvement of Metro Express or Sealcoat is not dispositive. Just as the City cannot delegate its duty to maintain the roads to a contractor, it cannot do so to a subcontractor [**71] of that contractor.

Accordingly, the question of whether the affirmative negligence exception to the written notice protections of § 7-201(c)(2) applies is a disputed question of fact to be resolved at trial, and the City is not entitled to summary judgment because it was not provided notice of the allegedly defective condition.12

12 Because the Court finds that the “affirmative negligence” exception may apply and because neither party has adequately briefed the “special use resulting in a special benefit” exception to § 7-201(c)(2), the Court declines to address the “special use” exception in this opinion.

VI. Primary Assumption of the Risk

The City, NYCBS, and APD also move for summary judgment on the grounds that the doctrine of primary assumption of the risk bars Corwin’s negligence claims. In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.” Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986). In this case, the Release Agreement signed by Corwin contained explicit provisions on assumption of the risk, which state, inter alia, that “Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or [*507] avoided. Member agrees that such risks, dangers, [**72] and hazards are Member’s sole responsibility.” ECF No. 316-1, Release Agreement. Whether or not the broad assumption of the risk language is applicable depends on what courts consider to be the risks inherent in bicycling, recreational or otherwise, on a paved road in an urban environment.

The New York Court of Appeals has cautioned that the doctrine of assumption of risk is justifiable exclusively for its utility in “‘facilitat[ing] free and vigorous participation in athletic activities'” and warned that the doctrine must be “closely circumscribed” and not “applied outside this limited context” lest it unduly displace the state’s comparative negligence regime. Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127 (2010) (citing Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989)).13 Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred.” Cotty, 64 A.D.3d at 255. Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational [**73] or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.” Id.; see also Moore v. City of New York, 29 A.D.3d 751, 752, 816 N.Y.S.2d 131 (2d Dep’t 2006) (plaintiff did not assume risk of recreational cycling on paved park road); Vestal v. Cty. of Suffolk, 7 A.D.3d 613, 614-15, 776 N.Y.S.2d 491 (2d Dep’t 2004) (“[T]he injured plaintiff cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because she participated in the activity of bicycling,” even where County argued that the pathway was “abandoned”).

13 In its reply memorandum of law, NYCBS appears to characterize Trupia as permitting an open-ended “social benefit” analysis to determine whether the assumption of risk doctrine applies and discusses the numerous beneficial aspects of the Citi Bike program as a public transit system. Trupia, however, was limited to discussing the social benefit to certain risky athletic activities and explicitly warns against applying the doctrine in any other context. 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127.

To be sure, courts have held that the doctrine of assumption of the risk applied in other contexts involving recreational cyclists. See, e.g., DeJesus v. City of New York, 29 A.D.3d 401, 402, 815 N.Y.S.2d 502 (1st Dep’t 2006) (plaintiff assumed risk for riding on pedestrian-only pathway in housing development); Chrem v. City of New York, 293 A.D.2d 301, 302, 741 N.Y.S.2d 201 (1st Dep’t 2002) (plaintiff assumed risk of steep drop-off in the back of a dirt mound not designated for cycling); Furgang v. Club Med, Inc., 299 A.D.2d 162, 162, 753 N.Y.S.2d 359 (1st Dep’t 2002) (“[T]he risk of encountering ruts and bumps while riding a bike over a rough roadway without a helmet is so obvious [that] as a matter of law, plaintiff assumed any risk inherent in the activity . . . .”); Goldberg v. Town of Hempstead, 289 A.D.2d 198, 198, 733 N.Y.S.2d 691 (2d Dep’t 2001) (“Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces, [**74] and the defective condition in this case was open and obvious, the infant plaintiff assumed [*508] the risk associated with riding her bicycle on the ballfield.”) (citations omitted); Calise v. City of New York, 239 A.D.2d 378, 379, 657 N.Y.S.2d 430 (2d Dep’t 1997) (plaintiff assumed the risk of hitting an exposed tree root on unpaved path in public park). These cases, however, are readily distinguishable because they all involved individuals riding a bicycle on an unpaved path or other area plainly not designated for cycling. While defendants contend that the Citi Bike station was such an “undesignated” area, the station was obviously integrated into the public roadway, and Corwin has at the very least raised a genuine dispute of material fact as to whether the design of this station compelled or encouraged him to ride through it to avoid riding dangerously close to traffic. Therefore, his brief passage through the parking lane and bike station cannot be analogized to a considered decision to engage in recreational mountain biking or to ride down an undesignated pedestrian walkway.

Accordingly, the doctrine of primary assumption of the risk is unavailable, and defendants are not entitled to summary judgment on this theory.

VII. “Open and Obvious”

A defendant has “no duty [**75] to protect or warn against an open and obvious condition which is not inherently dangerous.” Stern v. River Manor Care Ctr., Inc., 106 A.D.3d 990, 990, 965 N.Y.S.2d 377 (2d Dep’t 2013). Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Russo v. Home Goods, Inc., 119 A.D.3d 924, 925-26, 990 N.Y.S.2d 95 (2d Dep’t 2014). Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion . . . .” Tagle v. Jakob, 97 N.Y.2d 165, 169, 763 N.E.2d 107, 737 N.Y.S.2d 331 (2001). Defendants contend that Corwin’s claims fail as a matter of law because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.”

Defendants’ claims are buttressed by cases holding that wheel stops located in parking lots or similar environments were sufficiently “open and obvious” so as to bar claims by injured pedestrians. See, e.g., May v. Ruby Tuesday, Inc., No. 13-CV-170 (FJS)(ATB), 2014 U.S. Dist. LEXIS 140090, 2014 WL 4966544, at *5-6 (N.D.N.Y. Oct. 2, 2014) (parking lot wheel stop open and obvious especially given plaintiff’s admission that she had previously seen it); Abraido v. 2001 Marcus Ave, LLC, 126 A.D.3d 571, 571-72, 4 N.Y.S.3d 43 (1st Dep’t 2015) (wheel stop in well-lit parking lot open and obvious); Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 (2d Dep’t 2013) (parking lot wheel stop open and obvious when plaintiff admitted she was attempting to step over it); Wachspress v. Cent. Parking Sys. of New York, Inc., 111 A.D.3d 499, 499-500, 974 N.Y.S.2d 439 (1st Dep’t 2013) (parking [**76] lot wheel stop open and obvious); Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 593-94, 785 N.Y.S.2d 108 (2d Dep’t 2004) (same).

Whether or not a potential hazard is readily visible to the naked eye is evidently an important consideration in determining whether it is open and obvious, but it does not definitively resolve the question because “[t]he nature or location of some hazards, while they are technically visible, make them likely to be overlooked.” Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 (1st Dep’t 2004). On at least two occasions, New York courts, considering the broader context of plaintiffs’ encounter with wheel stops, declined [*509] to find that they were “open and obvious.” In Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 797-98, 22 N.Y.S.3d 106 (2d Dep’t 2015), the court found that a concrete wheel stop that began in a designated parking space but partially extended into and obstructed a pedestrian walkway was not “open and obvious” as a matter of law. Similarly, in O’Leary v. Saugerties Cent. Sch. Dist., 277 A.D.2d 662, 662, 716 N.Y.S.2d 424 (3d Dep’t 2000), a plaintiff who tripped over a concrete parking lot wheel stop raised a triable issue of fact by arguing that it was undetectable and camouflaged by cars parked bumper-to-bumper.

Were the Court to view the wheel stop, cross-hatching, and delineators in isolation, it would be hard-pressed to distinguish them from the conspicuous parking lot wheel stops that New York courts have found to be “open and obvious” as a matter of law. Notwithstanding [**77] Corwin’s argument that the wheel stop was “camouflaged” because it was not painted in a bright color that would contrast it with its surroundings, photographic evidence submitted by both Corwin and defendants suggests to the Court that it would have been readily visible to an observant pedestrian. Nevertheless, the types of obstacles that a pedestrian might expect to encounter in a parking lot are substantially different from those that a cyclist would expect in an on-street bike station. Therefore, the Court finds that Corwin has raised a genuine issue of material fact as to whether the wheel stop was open and obvious to an attentive person in his position–that is, a cyclist traveling within a station that arguably invited use as a bike lane.

The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” ECF No. 335, Green Decl. ¶ 56. An [**78] hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Id. ¶¶ 35, 57. Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. Id. ¶ 46. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.” Id. ¶¶ 48-49.

In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott, 550 U.S. at 378. Drawing all inferences in his favor, Corwin has distinguished the cases that feature garden-variety wheel stops in parking lots. Similar to the scenario in Rivera, 134 A.D.3d at 797, where the court did not find that a wheel stop was open and obvious as a matter of law when it partially obstructed a pedestrian walkway, there is a genuine dispute of material [**79] fact as to whether the wheel stop hazardously obstructed a path that was foreseeably and actually utilized by cyclists.

Accordingly, defendants are not entitled to summary judgment on the grounds that the wheel stop that caused Corwin’s accident was “open and obvious.”

[*510] VIII. Claims against Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC

Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC (collectively, “APD”), the architects and designers for the Citi Bike project who collaborated with the City to generate site plans for stations, move for summary judgment on Corwin’s claims of common law, gross, and professional negligence. APD notes that the key elements of the station that Corwin alleges caused his crash–primarily, the installation of the additional wheel stop at the east end of the station and the increased width of the station footprint–were installed in violation of its approved design. Corwin alleges that, even if APD did not recommend the installation of the specific wheel stop, their recommendation of unpainted concrete wheel stops throughout the Citi Bike system, and wheel stops’ placement within the [**80] foreseeable path of cyclists passing through stations were substantial factors in his accident. The Court need not resolve this dispute, however, because it finds that, regardless of the propriety of its recommendations to the City, APD did not owe a duty of care to Corwin under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002).

It is uncontested that, as an architecture firm, APD did not have any contractual obligations to install, inspect, or maintain Citi Bike stations and, therefore, could not be liable to Corwin under any theory dependent on its control of Citi Bike stations or wheel stops. See Gibbs v. Port Auth. of New York, 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 (1st Dep’t 2005) (“Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises . . . .”). It is similarly clear that APD had no direct contractual obligation to Corwin. Therefore, any duty to Corwin would necessarily flow out of APD’s contractual obligation to Alta Bicycle Share/NYCBS. “In the ordinary case, a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries.” Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 556 N.E.2d 1093, 557 N.Y.S.2d 286 (1990); see also H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 (1928) (Cardozo, J.) (noting that a contrary holding would imply that a contracting party would be forced into “the involuntary assumption [**81] of a series of new relations, inescapably hooked together”).

In Espinal, the New York Court of Appeals, synthesizing decades of case law, announced three exceptions to the general principle that contracting parties do not owe a duty of care to third persons. These exceptions are:

(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ (Moch, 247 N.Y. at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties (see Eaves Brooks, 76 N.Y.2d at 226) and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (see Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 589, 634 N.E.2d 189, 611 N.Y.S.2d 817 (1994)).

Espinal, 98 N.Y.2d at 140.

Corwin could not have relied on APD’s continuing performance under its contract with Alta Bicycle Share/NYCBS because [*511] APD had no such obligations except submitting site plans, and it had no effect on the duty of the other defendants to maintain the bike stations safely. Therefore, the only Espinal exception that arguably applies is that APD “launched a force or instrument of harm” with its allegedly negligent site plans and recommendations for wheel stop placements. This standard is met where “the promisor, while engaged affirmatively in [**82] discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk.” Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 111, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002); see also Guzman v. Wackenhut Corp., 394 F. App’x 801, 803 (2d Cir. 2010) (summary order).

On these facts, accepting the argument that providing allegedly negligent design advice and site plans is sufficient to “launch a force or instrument of harm” would lead to the very limitless expansion of tort liability that New York law seeks to prevent. Moch Co., 247 N.Y. at 165 (Cardozo, J.) (“An intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose.”). Indeed, Corwin’s argument is that APD’s negligence consists not of specific malfeasance relating to the design of the Citi Bike station where his accident occurred,14 but its general negligence in approving the type, appearance, and placement of wheel stops throughout the Citi Bike system. The logical conclusion of this argument is that by providing services to Alta Bicycle Share/NYCBS, APD would be subjecting itself to potential tort liability to literally millions of potential plaintiffs who could be involved in an accident involving wheel stops in any one of hundreds of Citi Bike stations–even as [**83] it had no responsibility for the maintenance or installation of the allegedly hazardous obstructions.15 This is not the law as summarized in Espinal.

14 Indeed, as APD argues, the Citi Bike station at issue in this case did not conform to its plan at all. See ECF No. 321-30, APD Expert Report. Corwin’s own expert would seem to agree. In a rebuttal report, James M. Green contended that “the original Engineering design [presented by APD] was proper in minimizing the clearance behind the parked bicycles and leaving out a wheel stop at the [relevant] intersection and was not followed during the construction of the bike station.” ECF No. 321-24, Green 01/06/16 Rebuttal Report at 9.

15 Corwin’s evidence that APD actually had some responsibility for the installation of Citi Bike stations, which appears to consist of a single May 22, 2013 email from APD engineer Adrian Witte referring the installation of station “bridging” (ECF No. 336-28), and deposition testimony references to the “collaborative” process between APD, NYCBS, and the City (ECF No. 335-6. Jeff Olson 08/26/15 Depo. at ¶¶ 401-02, 484, 530), is insufficient to raise a genuine dispute of material fact about APD’s lack of responsibility over Citi Bike stations.

Finally, Corwin argues that APD was an alter ego of Alta Bicycle Share/NYCBS because APD served as the parent company over Alta Bicycle Share before its sale in 2014. ECF No. 192, Second Am. Compl. ¶ 16. “It is well-settled that the party seeking to pierce the corporate veil has the burden of establishing that there is a basis to do so.” Maggio v. Becca Constr. Co., 229 A.D.2d 426, 427, 644 N.Y.S.2d 802 (2d Dep’t 1996) (citations omitted). Notwithstanding the close relationship between APD and Alta Bicycle Share/NYCBS, and their former association, Corwin has failed to establish that APD is anything but a legitimate and separate business entity engaging in planning and design. “Those seeking to pierce a corporate veil of course bear a heavy burden of showing that the corporation was dominated as to the transaction [*512] attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences. . . . An inference of abuse does not arise . . . where a corporation was formed for legal purposes or is engaged in legitimate business.” TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339-40, 703 N.E.2d 749, 680 N.Y.S.2d 891 (1998); see also Joseph Kali Corp. v. A. Goldner, Inc., 49 A.D.3d 397, 398-99, 859 N.Y.S.2d 1 (1st Dep’t 2008) (refusing to pierce corporate veil [**84] between two entities operated by same principal). On the record before it, the Court sees no conceivable equitable reason to disregard the corporate form in this case.

As the Court concludes that APD did not owe any duty to Corwin under Espinal, it need not consider APD’s alternate arguments regarding proximate causation and its defense that Corwin’s claim arose out of a deviation from its design. The Court GRANTS APD’s motion for summary judgment in its entirety.

IX. Claims against Metro Express Services, Inc. and Sealcoat USA, Inc.

Defendants Metro Express Services, Inc. and Sealcoat USA, Inc. (“Metro Express” and “Sealcoat,” respectively), third-party contractors who are alleged to have installed or sub-contracted the installation of the specific wheel stop that caused Corwin’s injuries, move for summary judgment, arguing that they did not owe Corwin a duty of care under Espinal, 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), and that the wheel stop is an open and obvious condition as a matter of law. Having already rejected the “open and obvious” argument in Part VII of this opinion, the Court considers whether Metro Express and Sealcoat had a duty to Corwin under one of the three Espinal exceptions discussed in Part VIII.

As was true [**85] for APD, there is no argument that Corwin “detrimentally relie[d] on the continued performance of the contracting party’s duties” or that Metro Express or Sealcoat “entirely displaced the other party’s duty to maintain the premises safely.” Id. at 140. Detrimental reliance becomes a consideration only when there is some form of continued contractual performance by the third-party contractor and is not relevant when the alleged negligent conduct concerns a one-time installation of station equipment (even if the contractor may have installed said equipment in many stations). And there is no evidence in the record that Metro Express or Sealcoat assumed any responsibilities, much less exclusive responsibilities, for the maintenance and safety of Citi Bike facilities.

Therefore, the only issue is whether there is a genuine dispute of material fact that Metro Express or Sealcoat “launch[ed] a force or instrument of harm.” Corwin contends that the wheel stop on the east side of the Citi Bike station was an “instrument of harm,” and a contractor negligently responsible for its installation could be found liable under Espinal. To be sure, “[a] builder or contractor is justified in relying upon the plans and specifications [**86] which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46, 145 N.E. 321 (1924). There are, however, genuine disputes of material fact as to whether the contractors installed the wheel stop in question and whether they did so pursuant to a plan provided them by NYCBS.

Citing ambiguities in emails received from NYCBS, Metro Express contends that a full installation of street treatments [*513] was never ordered for the Citi Bike station at issue, and in fact NYCBS only ordered Metro Express and Sealcoat to carry out repairs. ECF No. 366, Metro Express Reply Mem. at 3-4. Metro Express further notes that Sealcoat reported that there was nothing wrong with the station and never invoiced or received payment for any work. Id. at 5. Finally, it contends that Metro Express was never provided with a plan for the Station, and that NYCBS had been instructing Metro Express to install “supplemental street treatments” not depicted on the station plans, noting two specific instances in which they were ordered to do so in stations at Jay Street and Tech Place, and Charles Street and Greenwich [**87] Ave. Id. at 7-9.

While Metro Express and Sealcoat certainly raise issues of fact about their liability, there is sufficient information in the record to preclude a finding that they are entitled to judgment as a matter of law. For example, in addition to NYCBS’s allegations that Metro Express and Sealcoat were responsible for the installation, Ryan Landeck, Sealcoat Vice President, admitted in non-party deposition testimony in 2015 that Sealcoat had installed the wheel stop in question under Metro Express’s direction. ECF No. 289-10, Landeck 11/19/15 Depo. at 34, 45.16

16 Mr. Landeck later testified at a deposition that took place after Sealcoat was joined in the case that Sealcoat found that there was nothing to do be done at that location and Sealcoat did not invoice or receive payment for its alleged work at the station. ECF No. 368-3, Landeck 05/25/2016 Depo. at 51, 55. An October 23, 2013 email from Landeck to Michael Strasser, General Manager at Metro Express, further stated that “nothing was wrong at this station.” ECF No. 368-4.

Accordingly, the Court concludes that, unlike APD, there is a material dispute whether Metro Express and/or Sealcoat “launched a force or instrument of harm” if plaintiffs prove at trial that they negligently installed the wheel stop at the East 56th Street and Madison Avenue Citi Bike station in contravention of the site plan and the directions received from NYCBS. Unlike the case for APD, who provided general designs for hundreds of Citi Bike stations, there is no danger of an undue ballooning of tort liability because the contractors would be liable only for their own negligence and have an absolute defense if they can demonstrate [**88] that they were carrying out a pre-existing plan. Cf. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 430 (S.D.N.Y. 2014) (finding that Espinal and Moch stood for “the general public policy that courts will not impose a tort duty on a contracting party where doing so would expose the party to potentially unlimited and undefined liability” and finding a duty where there was “no risk of . . . boundless tort liability”).

Therefore, because the Court finds that a question of fact exists regarding whether Metro Express and/or Sealcoat “launched a force or instrument of harm,” Metro Express and Sealcoat’s motions for summary judgment are DENIED.

X. Gross Negligence Claims

Given that Corwin’s common-law negligence claims against NYCBS are barred by the enforceability of the Release Agreement as discussed in Part II of the opinion, NYCBS moves for summary judgment on the grounds that Corwin’s gross negligence claims fail as a matter of law.17

17 The City has also moved for summary judgment on this point; however, the Court has found that Corwin’s common-law negligence claims may proceed as to the City.

Under New York law, gross negligence is “conduct that evinces a reckless [*514] disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” Am. Tel. & Tel. Co. v. City of New York, 83 F.3d 549, 556 (2d Cir. 1996) (quoting Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821, 823-24, 611 N.E.2d 282, 595 N.Y.S.2d 381 (1993)). “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998). “In order to establish a prima facie case in gross [**89] negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.'” Travelers Indem. Co. of Connecticut v. Losco Grp., Inc., 204 F. Supp. 2d 639, 644 (S.D.N.Y. 2002) (quoting Hong Kong Exp. Credit Ins. Corp. v. Dun & Bradstreet, 414 F. Supp. 153, 160 (S.D.N.Y. 1975)).

Drawing all reasonable inferences in favor of Corwin, the nonmoving party, summary judgment is not appropriate on Corwin’s gross negligence claims. If, as argued by Corwin’s expert James M. Green, NYCBS is proven at trial to have unjustifiably ignored sound engineering practices and placed camouflaged wheel stops in the direct and foreseeable paths of cyclists, a reasonable factfinder could conclude that their conduct was sufficiently reckless and/or aggravated to meet the gross negligence standard. The defendants’ motion for summary judgment on Corwin’s gross negligence claims is therefore denied.

CONCLUSION

Corwin’s motion for summary judgment on defendants’ affirmative defenses relying on the Release Agreement is GRANTED as to the City and DENIED as to NYCBS. Corwin’s motion for summary judgment on defendants’ affirmative defenses relating to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions [**90] of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable, Corwin’s common-law negligence and professional negligence and malpractice claims are dismissed, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED. Metro Express and Sealcoat’s motions for summary judgment are DENIED.

The Clerk of Court is respectfully directed to terminate Dkt. Nos. 288, 295, 303, 304, 309, and 314 and terminate defendants Alta Planning + Design, Inc. and Alta Planning Design Architecture of New York, PLLC from the case.

SO ORDERED.

/s/ Sarah Netburn

SARAH NETBURN

United States Magistrate Judge

DATED: New York, New York

March 1, 2017


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

Spectators are always the biggest risk of many outdoor recreational activities. Even if they are behind fences or lines, the creep closer to the event and if a competitor leaves the track or run, it is the event host who might pay for the damages to the spectators.

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Andrea Ochall et al.,

Defendant: William M. McNamer et al.,

Plaintiff Claims: negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium

Defendant Defenses: Assumption of the Risk

Holding: for the Defendants

Year: 2016

This court was almost tedious in its review of the facts and the application of the law to the facts in this case. This case is another one outside of the normal scope of this review; however, it covers assumption of the risk in infinite detail under Ohio’s law and deals with claims of spectators. Spectators are present at most sporting events and in some cases assume the risk, like the baseball rule at baseball games and sometimes do not.

The defendant land owner’s kids built  a go-kart track. The decision involves a go-kart track in a homeowner’s back yard. The track was just a simple asphalt track. There were no barriers, no bleachers, nothing else except one bench. The land owner worked for a paving company so the track was paved. There was also a paved driveway from the barn where the go-karts were kept to the track. The track was built for no other purpose than for the use and enjoyment of the landowners and people they might invite over.

The track owner’s next-door neighbors used the track a lot and owned a go-kart that was stored with the landowner’s go-karts. However, the neighbors never used the track without asking permission before hand.

One day, the neighbors wanted to invite their friends to the track. Those friends became the plaintiffs.

Everyone took turns driving go-karts around the track, including the plaintiff. When not driving the go-karts, most of the people seemed to congregate on the asphalt drive between the track and the barn. The plaintiff argued this was a safe environment and the place to stand. There were no barriers between this or any place around the track and the track.

Various times during the day, different people drove off the track. After going off the track people simply drove back on the track and kept racing.

When not racing, the plaintiff was taking pictures. Taking pictures obscured the plaintiff’s view of what was going on sometimes.

During one race, the headband of one of the go-kart drivers slid down over her eyes. She grabbed the headband and through it off. While doing so she drove off the track striking the plaintiff.

The last picture the plaintiff took was the driver throwing her headband off.

The plaintiff’s sued the paving company the landowner worked for, as well as the landowner. The paving company was dismissed earlier on its motion and was not part of this discussion.

The plaintiff’s sued the landowner and the neighbors who invited them. The trial court dismissed the plaintiff’s claims based on various motions filed by the different defendants. The plaintiff appealed. The arguments presented in the various motions were boiled down to two and discussed without regard to the plaintiffs and all defendants even though they filed separate motions.

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

The appellate court first looked at assumption of the risk and whether it applied to this case. Assumption of the risk means the defendant owes the plaintiff no duty. Therefore, there is no negligence. Ohio recognizes three types of assumption of the risk: express, primary and secondary (implied).

Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” “Express assumption of the risk applies when parties expressly agree to release liability.” “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a known risk that acts as a defense to plaintiff’s action.”

Primary assumption of the risk is the defense that is applied to people who voluntarily engage in sports or recreational activities.

Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”

The argument for this is some sports or recreational activities cannot be played without risk. If the risk is removed from the sport, then the value in playing or the sport disappears. Another baseball example is the batter assumes the risk of being hit by a badly thrown pitch. If you remove that risk, the batter has nothing to swing at and there is no game of baseball.

By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.”

Ohio law applies the doctrine of primary assumption of the risk to participants and spectators alike [emphasize added].

Thus, courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of owners, operators, and sponsors of recreational activities. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. The doctrine also applies to spectators and participants alike.

Assumption of the risk when applied to a sport or recreational activity is not dependent upon the plaintiff’s knowledge and appreciation of the risks of the sport or activity. Normally to assume the risk a person must know and understand the risk as required in primary assumption of the risk. In sporting or recreational activities, knowledge of the risk is immaterial. Whether a participant assumes the risk is solely based on the risks of the sport, not what the participant knows.

Furthermore, when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” (Noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.”

Those risks that apply are the ones directly associated with the activity. Consequently, a court must proceed with caution when examining the activity and the risks because assumption of the risk is a complete bar because no negligence can be proved. Was the risk that injured the plaintiff a risk of the sport and if so, was that risk increased by the activity of the defendant. If the risks are part and parcel of the sport, then the defendant does not owe a duty to the plaintiff.

[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.”

The doctrine of applying primary assumption of the risk to sports and recreational activities was created to ensure the sport was played vigorously and freely without fear of reprisal.

The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”);…

That doctrine then defines primary assumption of the risk when applied to a sport as:

…where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’

The test is then applied with a three-part test.

Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists.

Risks that are “foreseeable, common, and customary risks of the activity” are therefore assumed by participants whether they knew of the risks or not. The Ohio Supreme Court further defined the definition to mean “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.’”

Looking at the risks of go-karting the court found that it was an inherent risk of the sport for a go-kart to leave the track. (Since go-karts had been leaving the track all day, this seems pretty implicit and also gives the plaintiff notice of the risk, although not required by the definition of primary assumption of the risk.)

Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object, which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons.

Primary assumption of the risk barred the claims of the plaintiffs.

The court then looked at whether the actions of the driver who left the track and struck the plaintiff where reckless which would defeat the defense of assumption of the risk. The court looked at the definition of recklessness under Ohio’s law.

An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.

That conduct must be measured against how the sport is played.

What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.”

Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.”

The plaintiff argued the defendants were reckless in failing to inform the plaintiff of the rules of the track. The court found there were no rules and there was no obligation to create them. The track was a backyard track built by the songs of the landowner for their enjoyment. There were no rules nor was there a requirement for the landowner to create rules for the use of the track.

Additionally, there is no duty to reduce or eliminate the risks of a recreational activity. The only duty is to not increase the risk of the activity. Consequently, the land owners did not owe a duty to create rules for the track or to inform the spectators of any rules if they were created.

Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity

The son of the landowner who built the track stated he had a ruled that spectators should stay in the barn. However, he had never enforced the rule. The court found that rule of no real value and no duty to create, enforce it or tell the plaintiff about it.

Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

There was a bench located near the track. The defendant land owner’s son argued it was for racers to sit on between races to rest. The plaintiff argued it was there for spectators and built to entice the plaintiff to stand near it where she was injured. However, the court did not agree with this argument either.

However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.”

The plaintiff’s then argued it was reckless of the defendants to conceal the dangers of the track by failing to warn them of the risks or educating them of the dangers. However, they could not tie these arguments, failing to warn, to the injury received by the plaintiff. The court found even if they had been informed of the risks, it would not have changed anything; the plaintiff would still have probably been injured.

Another recklessness claim was directed at the adults in charge of the minor driver who injured the plaintiff when she drove off the track. However, again, they could not relate those claims to the cause of the accident.

Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident.

Finally, the plaintiff claimed the minor driver was reckless in how she drove.

Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall.

This argument failed because reckless conduct is a conscious act. There was no conscious decision to drive off the track. The decision was to remove the headband when it was blinding her.

…reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man

The court could not find in the plaintiff’s recklessness arguments, a proximate cause or a relationship in the arguments that might have or would have changed the way things happened.

However, every tragic accident does not result in tort liability. Because Mrs. Ochall primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

The appellate court agreed with the trial court, and the case was dismissed.

So Now What?

The first issue is assumption of the risk applies to spectators. Spectators have always been the unknown possible lawsuit at events. Spectators usually pay to see the event so recreational use statutes provide no protection. They do not sign releases because they are not participating. However, based on this definition of assumption of the risk and the idea that a spectator should assume the risk because they watch the sport, a spectator is prevented from sung when injured under Ohio Law.

The second issue is the clear definitions of assumption of the risk defined in this.

On a side note, the plaintiff hired an expert witness who opined that the landowner should have built a small elevated wooden platform for spectators to stand on next to the track.

Hawn stated that a “reasonable solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.”

The expert also opined that the spectator’s area should have been relocated to the inside of the track and elevated. (So you have a group of people above the track level all turning around together to watch the race……)

Can you see what would happen at backyard playgrounds, sandboxes and every other play or recreational device in backyards? Sand boxes would have to come with sneeze guards you see on salad bars so sand could not accidentally be thrown in a grandparent’s face.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

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Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Andrea Ochall et al., Plaintiffs-Appellants/Cross-Appellees, v. William M. McNamer et al., Defendants-Appellees, Mark McMillen et al., Defendants-Appellees/Cross-Appellants.

No. 15AP-772

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

December 29, 2016, Rendered

PRIOR HISTORY:  [**1] APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 14CV-5498).

DISPOSITION: Judgment affirmed.

COUNSEL: On brief: Kitrick, Lewis & Harris, Co. LPA, Mark Lewis, Mark Kitrick, and Elizabeth Mote, for appellants. Argued: Mark Lewis.

On brief: The Carr Law Office, LLC, Adam E. Carr, and Eric K. Grinnell, for appellees William M. and Elizabeth McNamer. Argued: Adam E. Carr.

On brief: Lane Alton, Joseph A. Gerling, and Monica L. Waller, for appellees/cross-appellants Sharon and Mark McMillen. Argued: Monica L. Waller.

On brief: Hollern & Associates, and Edwin J. Hollern, for appellees James Porter and Jane Doe # 1. Argued: Edwin J. Hollern.

JUDGES: KLATT, J. SADLER, J., concurs. DORRIAN, P.J., concurs in and part dissents in part.

OPINION BY: KLATT

OPINION

(REGULAR CALENDAR)

DECISION

KLATT, J.

[*P1]  Plaintiffs-appellants, Andrea Ochall, her husband Robert Ochall, and their two minor children, appeal from a judgment of the Franklin County Court of Common Pleas, granting the motions for summary judgment of defendants-appellees, Sharon and Mark McMillen, James Porter and his minor daughter, Jane Doe, and William and Elizabeth McNamer (“Liz”). For the reasons which follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

[*P2]  On May 23, 2014, appellants [**2]  filed a complaint against the McNamers, the McMillens, Porter, Doe, McMillen Paving and Sealing, Inc. (“MP&S”), and McMillen Paving, Inc. The complaint asserted claims for negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium. The events giving rise to the complaint occurred on September 20, 2013, when Mrs. Ochall was seriously injured while watching a go-kart race on the McMillens’ property.

[*P3]  On the day of the incident, the McNamers had invited the Ochalls to their home in Hilliard, Ohio, for the purpose of using the go-kart track located on the McMillens’ property. The McNamers and the McMillens are next-door neighbors and very good friends. Liz McNamer and Robert Ochall are co-workers, and Liz McNamer had previously invited the Ochalls over to use the McMillens go-kart track in 2011. The Ochall family, both the adults and their two children, drove go-karts on the McMillens’ track during their visit in 2011. The Ochalls, however, had never met the McMillens before filing the [**3]  present lawsuit.

[*P4]  The McMillens’ son, Brian McMillen, with assistance from his younger brother Scott, constructed the go-kart track in the McMillens’ backyard between 1994-1995, when Brian was between the ages of 18 and 19-years-old. The McMillens own and operate a paving and sealing company, MP&S. Brian is now the vice president of MP&S, but was not when he originally constructed the track.

[*P5]  Brian and his brother built the track in their spare time, and used some company equipment to build it. The McMillens routinely used company equipment on their home projects. Brian explained that the track “basically is a twisted up driveway.” (Jan. 5, 2015 Brian McMillen Dep. at 62.) The McMillens have never charged anyone money to use the track and they do not operate the track commercially, it is something they simply use “to [their] liking.” Id. at 88.

[*P6]  Although the McNamers and the McMillens are close frends, the McNamers would always ask the McMillens for permission before bringing guests over to use the track. Thus, prior to the Ochalls’ 2013 visit, Liz McNamer asked the McMillens if they could bring the Ochalls over to use the track. The McMillens said yes, and Mark McMillen opened the McMillens’ [**4]  barn and prepared the go-karts for the group’s use.

[*P7]  The McMillens own five go-karts and the McNamers own one go-kart, but the go-karts are all the same make and model. Brian McMillen purchased all the go-karts from the same vendor shortly after he constructed the track, and the McNamers paid the McMillens directly for their one go-kart. Brian explained that he selected these specific go-karts because he “didn’t want to go so fast out there” so that people would “need helmets.” Id. at 109. Brian noted that the go-karts have “a bumper, * * * a full harness and had a roll cage,” and could reach a maximum speed of 28 miles per hour. Id. Brian also noted that he could not “recall whether or not we actually got a manual for the karts,” noting that he did not “remember even seeing a manual.” Id. at 115. The go-karts all have stickers on the back which advise the drivers that there is no bumping.

[*P8]  The McMillens store their go-karts in their barn, and there is a paved driveway which connects the barn to the track. The driveway connects with the track at the track’s start/finish line. Porter explained that people would generally congregate on the paved area next to the start/finish line in order “to trade positions [**5]  with the drivers or to watch people driving by.” (Dec. 30, 2014 James J. Porter Dep. at 41.) Liz McNamer stated that she “always stood” on the paved area near the start/finish line when she was at the track. (Feb. 10, 2015 Elizabeth G. McNamer Dep. at 56-57.) Mrs. Ochall stated that, during her visit in 2011, she was “instructed to stand in that — that particular area” by Liz McNamer. (Dec. 4, 2014 Andrea L. Ochall Dep. at 29.) No one told Mrs. Ochall where to stand during the 2013 visit. Id. at 135-36.

[*P9]  Brian McMillen testified that he designed the track “not to have any spectators.” (B. McMillen Dep. at 168.) Brian explained that, when he took “people out there, that’s part of my deal: Stay up in the barn until you come up and get in a kart.” Id. at 175. He also noted that anyone at the track had to “be aware. You’ve got cars going around the track. You have to be aware that that’s an issue.” Id. Mark McMillen had placed a bench at the back edge of that paved area next to the start/finish line. Brian explained that the bench was “by no means a bleacher,” as it was there simply for drivers to rest on between and after races. Id. at 170-71.

[*P10]  There are no barriers around the McMillens’ go-kart track, only painted edge lines. [**6]  Brian McMillen explained that he purposely did not construct barriers because barriers “would just be something for a kart to hit,” and would “give a much greater probability of making a car go airborn and possible flipping.” Id. at 168, 232. Accordingly, when driving on the McMillens’ go-kart track, “there are times you go off the track on a turn or you veer off for some reason or another. * * * And that happens regularly.” (J. Porter Dep. at 38.) Liz McNamer noted that she “went off into the grass” the first time she drove on the track. (L. McNamer Dep. at 40, 42.) She explained that it was “safe” for a driver to “go off the track and come back on.” Id. at 108-09. Porter noted that he had seen go-karts go off the track on the “big turns, * * * on the little turns, * * * on the straightaways,” and specifically stated that he had seen go-karts go off the track “coming out that final turn into the start/stop” area. (J. Porter Dep. at 38-39; 45-46.)

[*P11]  On the day of the incident, the Ochalls arrived with their two minor children, and two of their children’s friends. The McNamers’ son-in-law, Porter, was also present with his daughter, and the McNamers’ granddaughter, Doe. Doe was 11 years old; the Ochall children [**7]  and their friends were all 13 years old. The group met at the McNamers’ house, and walked through the adjoining backyards to the McMillens’ go-kart track. The McMillens were not present at the track; Sharon McMillen was at the grocery store and Mark McMillen was inside his home watching a football game.

[*P12]  Liz McNamer gave the group instructions regarding how to operate the go-karts, telling them, “the gas was on one side, the brake was on the other, the steering wheel.” (L. McNamer Dep. at 103.) Liz McNamer observed the children as they drove, noting that “[t]hey seemed to be doing pretty well. They seemed like they were able to manage going around the track.” Id. at 106. Liz McNamer noted that she watched the children driving to make sure that no one was “at risk,” and noted that she “didn’t see that.” Id. at 117.

[*P13]  There were more people than go-karts during the 2013 event, so both the adults and the children rotated using the go-karts throughout the day. As was typical at the McMillens’ track, multiple drivers drove off the track that day. Doe’s go-kart came all the way off the track and went into the grass, and Porter’s go-kart came partially off the track. One of the Ochall children drove off the track, “[a]ll [**8]  four wheels were off the track,” and Porter “had to push him out.” (J. Porter Dep. at 93, 95-96.) Liz McNamer stated that she “observed that day each child went off the track at some capacity.” (L. McNamer Dep. at 109.) Liz McNamer testified that, when Doe’s go-kart left the track earlier in the day, she spoke to her granddaughter and “cautioned her and advised her just to be careful. The ground was pretty saturated. * * * There was water standing, so I just wanted her to be aware and, you know, just cautioned her.” (L. McNamer Dep. at 129.)

[*P14]  Mrs. Ochall was aware that there were “no barriers, there’s no safety barriers” around the track. (A. Ochall Dep. at 137.) Mrs. Ochall also witnessed go-karts driving off the track on the day of the incident, and admitted that she knew “that [a go-kart] could come off the track.” Id. at 139. Indeed, two photographs Mrs. Ochall took that day depict go-karts which had driven partially and completely off the track. (See A. Ochall Dep; Defs.’ Exs. 3 and 4.) However, Mrs. Ochall believed that the paved area next to the start/finish line was “a safe environment. That is a safe zone.” (A. Ochall Dep. at 137.) No one ever told Mrs. Ochall that the paved area was [**9]  a safe zone. (See Dec. 4, 2014 Robert W. Ochall Dep. at 13; A. Ochall Dep. at 191.)

[*P15]  Mrs. Ochall drove a go-kart on the day of the incident. After driving, she stood around the track taking pictures. Mrs. Ochall’s camera had a telephoto lens, and there was a cup she had to put her eye up to in order to use the camera. Because she was taking pictures “one right after the other,” Mrs. Ochall admitted that she was “[n]ot always” able to see what was going on around her. Id. at 139-40. She admitted that her vision was “[p]robably” obstructed by her camera. Id. at 140.

[*P16]  After one to two hours at the track, the group decided they would hold one last race. Porter, Mr. and Mrs. Ochall, Mr. and Mrs. McNamer, and an Ochall child were all standing in the paved area adjoining the track near the start/finish line; the others participated in the race. During the second lap of the race, as Doe came into the turn which approached the start/finish area, “her hair band went over her eyes. She had grabbed it and thrown it off to get better vision. So as she grabbed it and thrown it off, * * * she went straight through” the paved area next to the track and struck Mrs. Ochall. (J. Porter Dep. at 117.) Mrs. Ochall was standing “10-12 feet to [**10]  the south of the painted edge line which delineated the marked boundary of the track surface” when the accident occurred. (Pls.’ Ex. C., Apr. 9, 2013 Choya R. Hawn Acc. Reconstruction Report at 8.) Porter noted that, the cars are “hard to steer with one hand,” so when Doe threw her headband “she kind of jerked as well,” which caused her to veer off the track. (J. Porter Dep. at 117.) Doe confirmed these events and told her father immediately after the incident that her “headband slipped over her eyes, and she threw it out and lost control.” Id. at 130.

[*P17]  Doe’s go-kart struck Mrs. Ochall directly and flung her into the air. When Mrs. Ochall landed, she suffered a serious spinal cord injury. The last photograph Mrs. Ochall took that day depicts Doe throwing her headband. (See A. Ochall Dep.; Defs.’ Ex. 5.) Prior to Mrs. Ochall’s injury, no one had ever been injured at the McMillens’ go-kart track. (L. McNamer Dep. at 44-45.)

[*P18]  Although each defendant filed separate motions for summary judgment, all defendants alleged that the doctrine of primary assumption of risk barred appellants’ negligence claims, and that there was no evidence of reckless or intentional misconduct. The McMillens further asserted [**11]  that, as they did not invite the Ochalls to their property, they could not be considered the social hosts of the Ochalls. The McNamers asserted that, as they were not the property owners, they could not be held liable for any condition on the McMillens property. MP&S and McMillen Paving, Inc. argued that McMillen Paving, Inc. was a shell corporation with no assets, and that MP&S did not design or construct the track.

[*P19]  Appellants filed a memorandum contra the defendants’ motions for summary judgment, asserting that “[n]othing occurred to alert [Mrs. Ochall] to any danger of go-karts driving into spectators in the seating area.” (Apr. 14, 2015 Pls.’ Memo. Contra at 8.) Appellants argued that primary assumption of the risk did not apply to the facts of this case, because the track was designed defectively and because all of the defendants had acted recklessly.

[*P20]  Appellants supported their memorandum contra with the report of their accident reconstruction expert, Choya Hawn. Hawn observed that, “[i]n the absence of any persons afoot the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) (Acc. Reconstruction Report at 13.) Hawn stated that a “reasonable [**12]  solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Id. at 16. Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.” Id. at 16, 18.

[*P21]  On May 6, 2015, the court issued a decision and entry denying the McMillens’ motion for summary judgment, in part, and granting the business entities’ motion for summary judgment. The court concluded that, as the McNamers had asked the McMillens if they could bring the Ochalls to the McMillens property, and the McMillens had granted the McNamers permission to do so, “an implied invitation between the McMillens and Plaintiffs occurred.” (May 6, 2015 Decision & Entry at 4.) As such, the court concluded that the Ochalls were the social guests of the McMillens. Regarding the entities, the court determined that McMillen Paving, Inc. had “never performed any business nor held assets, and never acted in the creation of the go-kart [**13]  track,” such that the company was an “inappropriate party to the suit.” Id. at 5. Regarding MP&S, the court concluded that the company “was not employed to create or maintain the go-kart track,” and that Brian McMillen was not acting in his capacity as an employee of the company when he constructed the track. Id.

[*P22]  On July 31, 2015, the trial court issued a decision and entry granting the McMillens’, the McNamers’, and Porter’s and Doe’s motions for summary judgment. The court observed that go-karting is a recreational activity, and concluded that, “[s]ince the risk of being injured by a go-kart leaving the track [was] a foreseeable risk of go-kart racing on the McMillen track,” the risk was “inherent to go-kart racing on a private, barrier-less backyard track.” (July 31, 2015 Decision & Entry at 7-8.) As such, the court concluded that primary assumption of the risk applied to bar appellants’ negligence claims, and that appellants could only recover if the defendants acted intentionally or recklessly to cause Mrs. Ochall’s injuries.

[*P23]  The “parties agree[d] that no one acted intentionally to injure Andrea Ochall on that day.” Id. at 8. Accordingly, the court addressed whether any of the defendants engaged in reckless [**14]  misconduct. Appellants argued that the defendants were reckless because they failed to enforce Brian McMillen’s no-spectator rule. The court observed that, while Brian McMillen had a no-spectator rule when he was at the track, Brian was not the property owner, and neither the McMillens nor Brian McMillen acknowledged Brian’s personal rule as a track rule. As such, the court concluded that “not allowing adult spectators at or near the track for races [was] not a rule, regulation, custom, or common practice of the track or races conducted at the McMillen track.” Id. at 11. The court also addressed appellants’ argument that the defendants were reckless because they had not read or implemented safety guidelines from the go-kart manufacturer’s or owner’s manuals. The court concluded that no defendant had a duty to inform appellants about those safety guidelines.

[*P24]  Regarding the McMillens, the court noted that, as the property owners, the McMillens had no duty to improve their track, as they only had a duty to “exercise ordinary care to prepare the property for social guests.” Id. at 12. Accordingly, the McMillens did not have “a duty to instruct guests on how to go-kart race or to implement any rules other [**15]  than those which the family uses on their land.” Id. at 14. The court observed that the McMillens merely allowed their neighbors and their neighbor’s guests to use their go-kart track. As such, the court did not find any evidence of reckless conduct by the McMillens.

[*P25]  Regarding the McNamers, the court noted that the McNamers similarly “did not have a duty to instruct guests on how to drive a go-kart.” Id. at 16. Regarding the McNamers supervision of Doe, the court noted that Liz McNamer told her granddaughter once to slow down. The court observed that “[a] single admonishment by a grandparent in the presence of the child’s parent” was “not sufficient evidence of recklessness.” Id. at 19. As there was no evidence indicating that the McNamers told appellants “they ‘had to’ stand on the adjacent asphalt area,” and as Liz McNamer also stood on the adjacent asphalt area, the court could not find that the “McNamer’s action of standing on the adjacent area rose to the level of reckless required by the theory of primary assumption of the risk.” Id. at 20.

[*P26]  Regarding Doe, the court concluded that Doe was not reckless, “because removing a hand from the steering wheel to clear one’s vision is the lesser of two evils. * * * [Doe] [**16]  did not intentionally drive into the spectator area, but was unable to correct her kart’s path in time to not strike Plaintiff.” Id. at 21. Regarding appellants claim that Porter was reckless by not removing Doe from the track earlier in the day, the court concluded that, as there was no evidence demonstrating that Doe was driving recklessly throughout the day, there was no reason why Porter should have removed Doe from the track.

[*P27]  Accordingly, the court concluded that primary assumption of the risk applied to the case, and that there was no evidence of reckless or intentional misconduct. As such, the court found the defendants entitled to summary judgment as a matter of law.

II. ASSIGNMENTS OF ERROR

[*P28]  Appellants appeal, assigning the following two assignments of error for our review:

1. THE TRIAL COURT ERRED APPLYING PRIMARY ASSUMPTION OF THE RISK TO HOLD THAT DEFENDANTS-APPELLEES WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW.

2. THE TRIAL COURT ERRED IN HOLDING THAT THERE EXISTED NO GENUINE ISSUES OF MATERIAL FACT CONCERNING DEFENDANTS-APPELLEES’ RECKLESS-NESS, THUS ENTITLING THEM TO JUDGMENT AS A MATTER OF LAW.

The McMillens have also filed a contingent cross-appeal, asserting the following sole, [**17]  assignment of error:

The Trial Court erred in denying in part the Motion for Summary Judgment of Appellees/Cross-Appellants Sharon McMillen and Mark McMillen and concluding that Appellants were social guests of the McMillens rather than licensees. The McMillens’ assignment of error is conditional upon the Courts’ ruling on the assignment of error of Appellants. If the Court overrules Appellants’ assignment of error, the McMillens will withdraw the cross-appeal.

III. STANDARD OF REVIEW

[*P29]   [HN1] Appellate review of summary judgment motions is de novo. Helton v. Scioto County Bd. of Comm’rs, 123 Ohio App. 3d 158, 162, 703 N.E.2d 841 (4th Dist.1997). “When reviewing a trial court’s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc Corp., 122 Ohio App. 3d 100, 103, 701 N.E.2d 383 (12th Dist.1997). We must affirm the trial court’s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327 (9th Dist.1995).

[*P30]   [HN2] Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse [**18]  to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party’s favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St. 3d 181, 183, 1997 Ohio 221, 677 N.E.2d 343 (1997).

[*P31]   [HN3] When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264 (1996). A moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party meets this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.

IV. FIRST ASSIGNMENT OF [**19]  ERROR — PRIMARY ASSUMPTION OF RISK

[*P32]  Appellants’ first assignment of error asserts that the trial court erred by applying the doctrine of primary assumption of the risk to the instant dispute. Appellants asserted various negligence claims against the defendants, and  [HN4] “in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “[A] successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law.” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).

[*P33]  [HN5]  “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). “Express assumption of the risk applies when parties expressly agree to release liability.” Crace at ¶ 11. “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a [**20]  known risk that acts as a defense to plaintiff’s action.” Id.

[*P34]  [HN6]  “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See also Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. “The rationale is that certain risks are so inherent in some activities that the risk of injury is unavoidable.” Crace at ¶ 13, citing Collier at 37. By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶ 12.

[*P35]  Thus,  [HN7] courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of [**21]  owners, operators, and sponsors of recreational activities. Crace at ¶ 12, 20. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 8, 802 N.E.2d 1116. The doctrine also applies to spectators and participants alike. Id. at ¶ 10.

[*P36]  Furthermore,  [HN8] when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry at ¶ 9. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 10 (noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997). See Rees v. Cleveland Indians Baseball Co., 8th Dist. No. 84183, 2004-Ohio-6112, ¶ 20, quoting Gum v. Cleveland Elec. Illuminating Co., 8th Dist. No. 70833, 1997 Ohio App. LEXIS 503 (Feb. 13, 1997) (explaining that “‘the baseball fan assumes the risk of being hit by a foul ball when [**22]  he takes his place in the stands, not at the moment the foul ball comes flying his way'”). Accordingly, Mrs. Ochall’s personal belief that the paved area next to the track was a safe zone is irrelevant to the primary assumption of the risk analysis.

[*P37]  [HN9]  “‘[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Gallagher at 432. “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Morgan at ¶ 14, citing Crace at ¶ 15. See also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744, ¶ 11. “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P38]   [HN10] The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” Marchetti at 99. See also Ferrari v. Grand Canyon Dories, 38 Cal. Rptr. 2d 65, 32 Cal. App. 4th 248, 253 (observing [**23]  that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 33 Cal. Rptr. 2d 777, 28 Cal. App. 4th 558, 565 (noting that “[d]uty is constricted in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).

[*P39]   [HN11] Whether to apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶ 12, citing Gallagher at 435. We therefore review the trial court’s application of the doctrine de novo. Id.

[*P40]  Appellants contend that the trial court disregarded relevant authority when it “looked only to ‘foreseeable’ and ‘common’ risks to invoke the doctrine.” (Appellant’s brief, at 16.) Appellants assert that the trial court “misunderstood and misapplied Ohio law” when it held that the risks which are foreseeable and common in the course of a sport or activity are the inherent risks of the activity. Id. at 16-17. The trial court observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part of the activity.'” [**24]  (Decision & Entry at 4, quoting Gentry at 144.)

[*P41]  In Gentry the Supreme Court of Ohio held that  [HN12] “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.'” Id. at ¶ 10, quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The court in Gentry noted that, “[o]bviously,” in Thompson, the court had “applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Id. at ¶ 11. See Thompson at 106 (noting that, because “[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf,” the plaintiff primarily assumed the risk of being hit by a golf ball by playing the game of golf).

[*P42]  [HN13]  Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. See Santho at ¶ 13 (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists. See id. (noting that it is “foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with [**25]  the barriers that set the perimeter of the skating surface”); Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 180-81, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925) (noting that it is “common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof”).

[*P43]  Thus, [HN14]  for primary assumption of the risk purposes, the risks inherent in an activity are the foreseeable, common, and customary risks of the activity. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 9 (noting that the “types of risks associated with the activity are those that are foreseeable and customary risks of the activity”); Deutsch v. Birk, 189 Ohio App.3d 129, 2010-Ohio-3564, ¶ 13, 937 N.E.2d 638 (12th Dist.). Accordingly, the trial court did not err by concluding that the foreseeable and cutomary risks of an activity are the inherent risks of the activity. See Gentry at ¶ 10, quoting Thompson at 104 (primary assumption of the risk applies to “‘conduct that is a foreseeable, customary part’ of the activity”).

[*P44]  Appellants further contend that the the “trial court improperly applied the doctrine when it failed to analyze whether the risks that injured Plaintiff-Appellant were inherent, necessary or unavoidable, [**26]  i.e., whether they could be eliminated.” (Appellant’s brief, at 17.) Appellants assert that the trial court “ignored” the “various ways” the danger to spectators “could have been eliminated.” Id. at 23. Relying on the accident reconstruction report, appellants assert that “the ‘potential’ danger to spectators could have been easily eliminated by (1) moving the spectator area, (2) elevating the spectator area by wooden deck, (3) installing simple barriers between the track and spectators, or (4) warning guests about the no-spectator rule.” Id. Appellants, however, misconstrue the meaning of risks which “cannot be eliminated.”

[*P45]   [HN15] The Supreme Court of Ohio has held that “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath at ¶ 19, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). In Horvath, the court observed that “collisions between skiers are an inherent risk of skiing,” as “‘other skiers are as much a part of the risk in downhill skiing, if not more so than the snow and ice, elevation, contour, speed and weather conditions.'” Id. at ¶ 20, quoting Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 25 (noting that, “by its very nature, karate, [**27]  as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated”). To determine the risks which are so inherent in an activity that they cannot be eliminated, a court must “focus[] exclusively upon the activity itself.” Schnetz at ¶ 28. See also Crace at ¶ 25.

[*P46]  For example, in Brumage v. Green, 2d Dist. No. 2014-CA-7, 2014-Ohio-2552, the court observed that “‘[l]osing control and flipping an ATV is a foreseeable and customary risk associated with the activity of driving or riding on an ATV.'” Id. at ¶ 14, quoting Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065, 2008-Ohio-5239, ¶ 56. The plaintiff argued that certain factors specific to the incident, including that he was driving the ATV on a public roadway, made the risks he faced “greater than are customary in the recreational activity of riding ATVs.” Id. at ¶ 15. The court refused to address the plaintiff’s incident specific arguments, because “flipping off an ATV and getting injured is a risk that is inherent in the recreational activity of riding an ATV.” Id. at ¶ 16. The Brumage court observed that, “‘[w]hat causes the driver to lose control is better addressed when determining whether the driver acted intentionally, [or] recklessly.'” Id. at ¶ 16, quoting West v. Devendra, 7th [**28]  Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 26, 985 N.E.2d 558. See also Morgan v. Kent State Univ. at ¶ 22, 25.

[*P47]  Accordingly, in analyzing the risks inherent to go-karting, we must focus exclusively on the activity of go-karting, and not on the actions or omissions of the defendants in this case. See Crace at ¶ 25 (observing that, if the law treated participants differently from nonparticipants, the primary assumption of the risk analysis would shift “away from the activity and its inherent risks,” and would “unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification as a participant, non-participant, * * * sponsor, provider, or otherwise,* * * with no regard for the inherent risks of the activity”). Appellants’ contentions regarding the things the defendants could have done to alter the McMillens’ track for the benefit of spectators essentially amount to claims that the various defendants were reckless. See Morgan v. Church of Christ at ¶ 16.

[*P48]  Additionally, appellants’ arguments regarding the “risks to spectators” at the McMillens’ track improperly attempts to shift the focus of the analysis away from the risks inherent in the activity. (Appellant’s brief, at 20.) [HN16]  Because the primary assumption [**29]  of the risk analysis focuses on the risks inherent in the activity at issue, spectators and participants are treated the same. Indeed, “spectators as well as participants ‘must accept from a participant conduct associated with that sport’ or activity.” Gentry at ¶ 10, quoting Thompson at 104. See also Taylor v. Mathys, 3rd Dist. No. 14-04-32, 2005-Ohio-150, ¶ 10, citing Gentry at ¶ 6 (noting that primary assumption of the risk’s “limitation on liability extends to the spectators of a recreational activity as well as the participants”); Crace at ¶ 25. “‘[T]hose entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game.'” Gentry at ¶ 12, quoting Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002).

[*P49]  Focusing on the activity at issue herein, we observe that go-karting is a recreational activity involving motorized go-karts which are propelled forward around a racetrack by a driver. During a race, a go-kart driver will attempt to drive their go-kart past the other go-karts in the race in order to be the first go-kart to cross the finish line. The joy of go-karting derives from attempting to maintain control over one’s go-kart while maneuvering, [**30]  at speed, around the go-kart track and the other go-karts present on the track. Accordingly, [HN17]  the inherent risks of go-karting include running into other go-karts on the track, or deviating from the track and running into any object present around the track. See Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263, 654 N.Y.S.2d 169 (1997) (where the plaintiff’s “go-kart veered off its intended course, striking the wall in the pit area head on,” the court observed that, “[i]n riding the go-cart, the plaintiff * * * assumed the risks inherent in the activity,” which included that the “go-cart would bump into objects”); Garnett v. Strike Holdings LLC, 131 A.D.3d 817, 820, 15 N.Y.S.3d 786 (2015) (noting that “the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart”). Compare Jussila v. United States Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn.App.1996) (noting that “a snowmobile takes on a more dangerous character when operated on a racetrack by competitors attempting to win races”).

[*P50]  Accordingly, [HN18]  the risk that a go-kart may veer off the track and strike any object present nearby is a risk inherent to go-karting. As such, Mrs. Ochall assumed that risk in the primary sense when she stood 10 to 12 feet away from the McMillens’ go-kart track while a go-kart race was in process.

[*P51]  Appellants [**31]  assert that the trial court erred “by conflating the duty analysis under primary assumption of the risk with the social host duty of care in premises liability cases.” (Appellant’s brief, at 27.) The trial court noted appellants’ argument that “a risk is not inherent if it can be eliminated with due care,” but concluded that, because “[d]efendants, as social hosts, did not have an additional duty to make adjustments to the private, residential track, * * * the risk in question [was] a risk inherent to go-kart racing on a private, barrier-less backyard track.” (Decision & Entry at 5, 7-8.) Appellants contend that the trial court’s analysis improperly mixed “duty with breach.” (Appellant’s brief, at 27.) We agree.

[*P52]  The trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. Instead, the trial court wrongly focused on the defendants, and the duty they owed to appellants, rather than focusing on the activity at issue. See Schnetz at ¶ 30 (finding that the trial court erred by concluding that primary assumption of the risk did not apply “to inmate claims against a prison because a prison owes a duty of care to inmates in its custody and [**32]  control,” as such a “holding shift[ed] the focus of the analysis away from the activity and its inherent risks and improperly focuse[d] upon the extent of the defendant’s involvement and the defendant’s classification”).

[*P53]  Although the trial court erred by considering the defendants’ duty under the primary assumption of the risk analysis, this error does not amount to reversible error. Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons. See Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 115, 637 N.E.2d 963 (2d Dist.1994) (noting that, since the reviewing court must independently determine, as a matter of law, whether summary judgment was properly granted, “[a] summary judgment based on a legally erroneous analysis of the issues must be affirmed if the appellate court independently determines that upon the record summary judgment should have been rendered [**33]  as a matter of law, albeit for different reasons”).

[*P54]  Appellants assert that the trial court disregarded the two Ohio go-karting cases, Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999) and Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002), in reaching its summary judgment decision. The trial court noted the cases, but correctly found the cases inapplicable to the present dispute. (See Decision & Entry at 5-6.)

[*P55]  In Reed the plaintiff was injured at a charity go-kart race being held on city streets. The race organizers had placed a four-foot high fence and bales of hay around the race perimeter to separate the sidewalk from the racetrack. The plaintiff was “initially watching the race from a spectator area,” but had moved to another area to watch the race, which was still “protected by the orange fencing” but had “fewer hay bales.” Id. Two go-kart drivers collided during the race, causing one go-kart to veer off the track and strike the plaintiff. The court stated that it was “not convinced that injury to a spectator [was] the kind of risk so inherent to the sport of go-kart racing that the appellant could be deemed to have consented to it.” Id. The court noted that the plaintiff “testified that she observed [**34]  other accidents during go-kart races and that there had, in fact, been several other accidents on the day she was hit.” Id. The court concluded that simply observing other go-karts run into each other did “not mean that injury to spectators as a result of karts leaving the track [was] inherent to racing,” but stated that it “raise[d] a question of fact as to whether such risk was obvious to appellant.” Id.

[*P56]  As Reed is a decision from the Third District Court of Appeals, it holds no precedential value in this district. Furthermore, as the Reed court failed to engage in a proper primary assumption of the risk analysis, we do not find the decision persuasive. Reed did not attempt to ascertain the risks inherent to the activity of go-karting. Instead, the court simply concluded that injury to spectators was not an inherent risk of go-karting. In so concluding, the court treated spectators differently from participants, in violation of Gentry. The Reed court also inappropriately considered the plaintiff’s subjective understanding of the risk, in further violation of Gentry.

[*P57]  Unlike the present case which concerns a private, free, backyard go-kart track, in Goffe the plaintiff was a business invitee [**35]  at a commercial go-kart track. The plaintiff was injured exiting her go-kart at the end of the ride when another driver accidently accelerated and “struck a parked go-cart in the off-loading area of the track,” which then “struck Ms. Goffe in the leg.” Id. The plaintiff alleged defective design had caused her injury because, at the end of the ride, a gate would funnel the go-karts “into a confined pit area so that a runaway go-cart had no option but to strike go-carts in the unloading area.” Id. The court observed that “[o]ne who rides an amusement device assumes the ordinary risks inherent in the ride, insofar as those risks are obvious and necessary, but only so long as the device is properly designed and the operator has used proper care in its construction and operation.” Id., citing Pierce v. Gooding Amusement Co., 55 Ohio Law Abs. 556, 90 N.E.2d 585 (1949). The court concluded that the business had breached its “duty of ordinary care to Ms. Goffe by desiging an amusement ride which created an unreasonable danger that the rider would be injured while exiting the ride but before reaching a place of safety.” Id.

[*P58]  Relying on Goffe, appellants contend that primary assumption of the risk cannot apply in this matter, because defendants “enhanced the unusual risk [**36]  to spectators by operating a defective track.” (Appellant’s brief, at 23.) Appellants assert that defendants “failed to design, build and operate the track to account for spectator safety by, among other steps, moving the spectator area inside the track and elevating it.” Id. at 24. Appellants argue that the track was defective because defendants “built and maintained a ‘short chute’ at the final high-banked turn to create faster go-kart speeds approaching the spectator area.” Id. However, there is no evidence in the record indicating that either the short-chute or the high-banked turn created faster go-kart speeds, or that these aspects of the track caused the accident.

[*P59]  Brian McMillen explained that, in 2010-11, he “raised the elevation” on the curve approaching that start/finish area in order to “control flooding from the pond and the ground water.” (B. McMillen Dep. at 135.) The alteration resulted in the track “dropping three or four inches over that 30-40 feet” as a kart approached the straightaway into the start/finish line. Id. at 149. Brian referred to the straightaway as a “short chute,” explaining that a “short chute” is just a “small piece of straightaway between two turns.” Id. at 150. Notably, Brian [**37]  confirmed that this alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” Id. at 149.

[*P60]  Hawn concluded that “it was mathematically possible for a kart to be driven successfully through the high-banked curve at the south end of the track” approaching the start/finish area “at full (maximum) speed,” and explained that “[t]he laws of Newtonian physics dictate that if a kart were to exceed the critical speed of the high-banked curve or fail to maintain a traversable line through the curve, the kart will break tracation and likely slide towards the outside of the curve beyond the apex.” (Acc. Reconstruction Report at 10, 13. ) Hawn stated that Doe’s go-kart was travelling between 18 to 25 miles per hour when it struck Mrs. Ochall, “which was consistent with the critical speed calculations for the kart traversing the high-banked curve.” Id. at 11. Thus, Doe did not exceed the critical speed of the high-banked curve. Although Hawn referred to the high-banked curve as the “fastest curve of the track,” he did not find that the curve created unreasonably fast go-kart speeds or that the curve would cause a driver to lose control of their go-kart. Id. at 13.

[*P61]  Indeed, Hawn [**38]  concluded that the “design, layout, construction and overall environment of the track facility (with the generous clear zone) was reasonably safe for the ‘operators of the karts.'” Id. at 17. Hawn also stated that the “the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) Id. at 15. Thus, appellants own expert concluded that the design of the track was safe. Appellants have failed to demonstrate a genuine issue of material fact regarding whether the track was designed defectively.

[*P62]  Appellants’ contention that the McMillens’ track was defectively designed because there was no infield, elevated, spectator platform, does not amount to an argument that the track was designed defectively. An elevated viewing platform would not be part of the track itself; rather, it would be a separate structure near the track. Appellants’ contention that defendants should have constructed a viewing platform for spectators, or taken other actions for spectators, do not allege that the track itself was designed defectively, but are essentially claims that the defendants were reckless by failing to build a spectator platform.

[*P63]  Based on the foregoing, we find that Mrs. Ochall [**39]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track. Appellants’ first assignment of error is overruled.

V. SECOND ASSIGNMENT OF ERROR – RECKLESSNESS

[*P64]  Appellants’ second assignment of error asserts that the trial court erred in finding no genuine issues of material fact regarding defendants’ recklessness.

[*P65]  [HN19]  An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.'” Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Thompson at 105.

[*P66]  Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, [**40]  it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.” Id. Conversley, “any conduct which is characterized by the strong probability of harm that recklessness entails, and which occurs outside the normal conduct and customs of the sport, may give rise to liability.” Id. In assessing recklessness, courts must recognize the “inverse relationship between duty and dangerousness,” as the “‘quid pro quo of an “assumed greater risk” is a diminished duty.'” Id., quoting Hanson v. Kynast, 38 Ohio App. 3d 58, 64, 526 N.E.2d 327 (5th Dist.1987).

[*P67]  Appellants assert that the trial court “wrongly construed evidence regarding Defendants’ failure to warn Andrea Ochall about the track builder Brian McMillen’s design and rule prohibiting spectators in a light most favorable to [plaintiffs].” (Appellant’s brief, at 34.) Appellants assert that, construing the evidence in their favor, there are genuine issues of material fact regarding whether McMillens and/or McNamers disregarded Brian McMillen’s rule and “knowingly failed to warn or inform Andrea Ochall about the Brian McMillen’s design and policy.” Id. at 38.

[*P68]  As noted above, Brian McMillen testified that he did not design the track to account for spectators. (B. McMillen Dep. [**41]  169.) Brian explained that he “rarely” had spectators at the track, but that when he did, he told them to “[s]tay up in the barn.” Id. at 172, 175. However, Brian also did not enforce his no-spectator rule when he was at the track. Brian noted that when the track was first built his “dad may come out or one of [his] friends may come out and stand somewhere in that vicinity,” of the paved area next to the start/finish line, “and watch us turn a couple laps.” Id. at 172. Brian stated that he had never kicked any spectator of the paved area next to the start/finish line. Id. at 182-83.

[*P69]  Sharon McMillen noted that Brian told her “[a] couple of years ago” that he had a no-spectator rule when he was at the track, but she clarified that he never told her that the track wasn’t designed for spectators. (Feb. 10, 2015 Sharon McMillen Dep. at 104-05. Sharon noted that, when she was out at the track, she would stand “[u]sually in the grass out by the corner where the bench sits,” explaining that’s “just where we stand.” Id. at 100, 102. Sharon stated that she previously stood on the paved area next to the start/finish line when Brian was also present at the track, and that he never told her to move from that location. Id. at 130.

[*P70]  Indeed, for adult spectators at the McMillens’ [**42]  go-kart track, there “was no rule” regarding where they had to stand. Id. at 108-09. Sharon McMillen noted, “[t]here’s seven acres they can stand on. They can stand anywhere.” (S. McMillen Depo. 108.) Sharon believed it was safe for people to stand on the paved area next to the start/finish line at the track, “[a]s long as they’re watching what’s going on.” Id. at 102, 108.

[*P71]  The McMillens, as the property owners who granted the McNamers permission to bring the Ochalls upon their land, were the implied social hosts of the Ochalls. See Estill v. Waltz, 10th Dist. No. 02AP-83, 2002-Ohio-5004, ¶ 32 (noting that,  [HN20] to be classified as a social guest, “the evidence must show the host extended to the guest an actual invitation, express or implied”). As social hosts, the McMillens owed their guests the following duties: (1) to exercise ordinary care not to cause injury to their guests by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will [**43]  not discover such dangerous condition. Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951), paragraph three of the syllabus. Accordingly, the McMillens had a duty to warn the Ochalls of any dangerous condition on their premises which the McMillens had reason to believe the Ochalls did not know about and could not discover.

[*P72]  As the lack of barriers around the McMillens’ track was readily apparent, there was no dangerous condition about the track which the McMillens should have had any reason to believe the Ochalls did not know about or could not discover. Indeed, Mrs. Ochall saw go-karts driving off the track throughout the day, and admitted that she knew that there “was no barrier in front of [her] * * * to protect [her] from getting hit by a car if it left the track.” (A. Ochall Dep. at 172-73.) Accordingly, the McMillens had no duty to warn appellants about Brian McMillen’s personal track rule. As such, viewing the evidence in a light most favorable to the Ochalls, we are unable to find a genuine issue of material fact regarding whether the McMillens intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Section 500, at 587 (1965). As such, the McMillens were not reckless by failing to inform [**44]  appellants about Brian’s rule.

[*P73]  Regarding the McNamers, appellants assert that the McNamers were reckless because they “knew of [Brian McMillen’s] prohibition and failed to inform guests.” (Appellant’s brief, at 36.) Liz McNamer stated that she could not recall if Brian McMillen ever told her about his no-spectator rule, noting that “[h]e could have told [her] husband, but * * * [she didn’t] recall.” (L. McNamer Dep. at 66.)

[*P74]  During Brian McMillen’s deposition, counsel asked him if he ever told “people, including the McNamers or anybody, that if you’re not driving a go-kart, then you better not be standing anywhere on this track, whether it’s the access road, sitting on that bench, anywhere on this asphalt period?” (B. McMillen Dep. at 175.) Brian responded, stating:

Absolutely. Absolutely we’ve talked about that with the McNamers, with Michael, their son, with my brother, myself, my dad, we’ve all discussed the common sense rules of the road that we’re going to follow out here on this go-kart track. Absolutely.

* * *

And, again, you know, it’s not like we sat down and said, hey, let’s write a rule book for the track. I’m talking about general guys hanging out in the garage, garage talk, hey, [**45]  these are the rules of the road we’re going to follow. Again, we’re not putting together a commercial facility here. We’re going — we’re putting together a little backyard toy here.

Id. at 175-76.

[*P75]  When asked if he told the McNamers that he “didn’t build this track for there to be any bystanders. And that if you’re not racing, no one is allowed to be standing around watching people racing or in go-karts going around the track on any part of this asphalt,” Brian stated “[t]hat’s just generally speaking what we have always gone with.” Id. at 177.

[*P76]  Liz explained that everytime she had ever been to the track people would be standing in the paved area adjacent to the start/finish line. (L. McNamer Dep. at 67.) Liz also always stood in that area and believed it was safe to stand there as long as “you’re observing and — and paying attention and watching what’s occurring.” Id. at 56-57. Porter similarly testified that whenever he had been to the track, people always stood on the asphalt near the start/finish line. (J. Porter Dep. at 44.)

[*P77]  To determine whether the McNamewrs were reckless in failing to inform the Ochalls about Brian McMillen’s personal track rule, we ask whether the McNamers intentionally failed to inform the Ochalls about [**46]  Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). As noted, [HN21]  primary assumption of the risk “‘relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity.'” Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 2007-Ohio-1800, ¶ 34, 874 N.E.2d 811 (10th Dist.), quoting Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225, 236, 2002 Ohio 1850, 776 N.E.2d 1126 (1st Dist.2002).

[*P78]  The parties do not direct us, and our independent research has failed to produce, an Ohio case delineating the duty which a non-landowner, sponsor or organizer of a free activity owes to the participants of the activity.  [HN22] Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recereational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity.” Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 1162, 150 Cal. Rptr. 3d 551, 290 P.3d 1158 (2012).1 See also Saville v. Sierra College, 36 Cal. Rptr. 3d 515, 133 Cal. App. 4th 857 (2005) (noting that an “organizer of an activity is under a duty not to increase the risk of injury inherent in the activity”); Estate of McNeil v. FreestyleMX.com, Inc., 177 F.Supp.3d 1260 (S.D.Cal. 2016) (noting that the “organizer and promoter of the freestyle motocross event” owed the plaintiff a limited duty of care, “breached only if they increased the risk beyond that which is inherent to the activity itself”); Amezcua v. Los Angeles Harley-Davidson, Inc., 132 Cal. Rptr. 3d 567, 200 Cal. App. 4th 217 (2011) (concluding that the sponsor of the activity, had not “increased the inherent danger [**47]  of riding in an organized motorcycle ride,” because “traffic slowing and other drivers not paying attention are inherent risks of riding in an organized motorcycle ride on public highways,” and to close down the freeway in order to eliminate these risks “would alter the parade-like nature of riding in a motorcycle procession on a public highway”).

1 In Nalwa the plaintiff argued that sponsors of recreational activities should owe a greater duty to participants. The court disagreed, holding as follows:

 [HN23] A rule imposing negligence duties on sponsors, organizers and operators of recreational activities would encompass not only commercial companies like defendant but also noncommercial organizations without extensive budgets or paid staff. Such groups might not easily afford insurance to cover injuries that are inherent risks of the activity; nor could they readily collect large fees from participants to cover that cost. The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury.

Nalwa at 1162.

 [*P79]  Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. [**48]  Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

[*P80]  Appellants next assert that the trial court “ignored factual issues regarding Defendants’ concealing the danger from Andrea Ochall by installing a bench to entice her to congregate on the paved area next to the track not designed for spectators.” (Appellants’ brief, at 38-39.) Mr. McMillen had placed a light, moveable, park style bench on the back of the paved area adjoining the start/finish line. (S. McMillen dep. at 106.) Brian McMillen explained that the bench was for drivers to [**49]  sit on following a race, noting that, after a race, “you’re tired, your back hurts, your legs are sore, you’re sweating. * * * A guy will sit on that bench and relax for a minute.” (B. McMillen Dep. at 170.)

[*P81]  Sharon McMillen agreed with counsel that someone might think “if there’s a bench around, that that may be a safe place to be because there’s a bench where you could sit.” (S. McMillen Dep. at 106.) However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.” (J. Porter Dep. at 107.) Compare Kacsmarik v. Lakefront Lines Arena, 8th Dist. No. 95981, 2011-Ohio-2553, ¶ 10, 13 (concluding that the “bench was not the proximate cause of [plaintiff’s] injuries,” as the plaintiff was not “sitting on the bench when she was injured” as she had “left the bench, [and] opened the ice rink door”).

[*P82]  Construing the evidence in appellants’ favor, [**50]  we cannot find that the McMillens knew or had reason to know of facts which would have lead them to realize that placing a bench near their go-kart track created an unreasonable risk of physical harm to another, or amounted to conduct substantially greater than negligent conduct. Simply placing a bench by the track did not create an unreasonable risk of physical harm to others, as the bench did not obsecure anyone’s ability to appreciate the barrier-less nature of the go-kart track.

[*P83]  Appellants also state that Hawn concluded that Brian McMillen’s 2010-11 alteration to the track, “enhanced the danger to spectators by creating greater risk go-karts would lose control.” (Acc. Reconstruction Report at 13-14.) (Appellant’s brief, at 41.) Appellants assert that “[t]his remodeling and the enhanced risk were not known to Andrea Ochall, whereas McMillens knew that they had made the track faster for go-karts approaching the spectator area where they had placed the bench.” (Appellant’s brief, at 41.) Although appellants do not directly argue that the McMillens acted recklessly by altering their track, we observe that the McMillens were not reckless in this regard, as there is no evidence linking the [**51]  2010-11 alteration to an increased risk that a driver would lose control of their go-kart.

[*P84]  Hawn stated that the paved area next to the start/finish line, and “just beyond the exit to the fastest curve of the track,” would be a danger zone to persons afoot, but only “if a driver should experience such a loss of control and deviate from the track.” (Acc. Reconstruction Report at 13.) Similarly, Hawn stated that the paved area next to the track was dangerous for spectators, but only in the event that “a kart deviated from the track, at speed, due to driver loss of control in the curve.” Id. at 14. Thus, Hawn’s opinion that the paved area next to the start/finish line was unsafe for spectators was based on if a driver should lose control of their go-kart. Hawn did not find that the elevation of the curve, or that the straightaway itself, would cause a driver to lose control of their go-kart. Brian confirmed that the 2010-11 alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” (B. McMillen Dep. at 149.)

[*P85]  Furthermore, Hawn opined, and the record supports, that it was Doe’s act of “discarding an unwanted headband” which caused her to fail [**52]  to “maintain steering control [which] was a significant causative factor” of the accident. (Acc. Reconstruction Report, 14-15.) Thus, it was Doe’s act of removing her hand from the steering wheel to remove her headband from her face, and not the elevation of the high-banked curve, which caused the accident.

[*P86]  Appellants also state that “an easy, inexpensive precaution” for the McMillens was to “relocate the spectator area to the inside of the track and raise the elevation where their guests stood.” (Appellant’s brief, at 41.) Appellants do not directly assert that the McMillens acted recklessly by failing to construct an elevated spectator platform. Regardless, the McMillens were not reckless by failing to construct a spectator platform, because they had no duty to do so.  [HN24] “‘There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises.'” Scheibel at 315, quoting 38 American Jurisprudence 778, Section 117.

[*P87]  Appellants next assert that defendants concealed the “danger by failing to educate themselves about [**53]  safety or warn guests of known danger.” (Appellant’s brief, at 43.) Appellants observe that Sharon McMillen instructed drivers, “don’t be bumping into anybody,” but assert that she was reckless because she did not know how fast the go-karts traveled, wasn’t aware of the go-kart’s maintenance schedule, and did not follow the go-kart manufacturer’s height or age restrictions. Id. at 44-45. Appellants similarly assert that Liz McNamer was reckless because she did not know the make or model of the go-karts, did not know the go-kart manufacturer’s age or height restrictions, and did not know how fast the go-karts traveled. Id. at 45-46.

[*P88]  Appellants, however, fail to explain what any of these facts have to do with the accident. The accident did not result from unsafe go-kart operation; it occurred because Doe’s headband slipped into her eyes. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855 (1st Dist.), ¶ 43, 830 N.E.2d 1252 (observing that, although the plaintiffs “presented evidence that the handrail was deteriorating and that a 1 to 50 instructor-to-student ratio was too high to be considered safe, they presented no evidence that either of these factors played even the slightest role in causing Eric’s injury”). Appellants fail to establish a genuine issue of material fact regarding whether [**54]  the defendants intentionally failed to educate themselves about go-kart safety when they had a duty to do so, or that they intentionally failed to warn appellants about the dangers of go-karting when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). Accordingly, the record fails to demonstrate that any of the defendants acted recklessly by failing to educate themselves about safe go-kart operation or by failing to warn guests of the dangers of go-karting.

[*P89]  Appellants lastly assert that the trial court “construed evidence regarding [Doe’s] driving and supervision of her by Liz McNamer and James Porter in a light most favorable to Defendants.” (Appellant’s brief, at 48.) Appellants note that, earlier in the day before the accident, Doe drove off the track, and that “[o]ther children came partially off the track as well.” Id. at 48. McNamer went and spoke to Doe after she drove off the track, and “cautioned her and advised her to be careful.” (L. McNamer Dep. at 129.) McNamer explained that “all the children had went off” the track that day, but that she only spoke to Doe because she was Doe’s “grandparent.” Id. at 131. McNamer noted that, “[n]o one else said anything to me that anyone was driving reckless or [**55]  that [Doe] wasn’t in control.” Id. Porter testified that Doe’s driving that day was “[t]ypical for past driving and typical of the driving of all of the other children who were racing that day.” (J. Porter Dep. at 105.) Porter stated that he never told his daughter, or anyone, to slow down. Id. at 152.

[*P90]  Mrs. Ochall testified that Doe “had been asked numerous times to slow down and watch her speed. * * * She was warned by her father, by Liz.” (A. Ochall Dep. at 27.) Mrs. Ochall characterized Doe’s driving as “out of control,” because she had “gotten off the track” and “was just driving aggressively.” Id. at 45-46. Mr. Ochall stated that Doe was “driving aggressively,” by “[p]assing other cars.” (R. Ochall Dep. at 53.) However, Mrs. Ochall explained that she took no precautions for her own personal safety in light of Doe’s allegedly aggressive driving, because she “felt that [Doe’s] grandmother and father addressed the behavior with [Doe].” (A. Ochall Dep. at 48.)

[*P91]  Accordingly, construing the evidence in appellants’ favor, Porter and McNamer watched the children driving, all the children drove off the track that day, and McNamer and Porter cautioned Doe about her driving. Although Mrs. Ochall characterized Doe’s driving as aggressive, [**56]  she felt that McNamer and Porter adequately addressed Doe’s behavior by speaking to her. Appellants fail to demonstrate how Porter or McNamer engaged in conduct which was substantially greater than negligent conduct by keeping an eye on Doe and cautioning her.

[*P92]  Appellants assert that the trial court “ignored the Ochalls’ testimony that [Doe] was driving aggressively.” (Appellant’s brief, at 50.) The trial court, however, did not ignore this evidence. The court noted appellants’ contention that Doe was driving aggressively by “passing other karts and veering off the track.” (Decision & Entry at 20.) The trial court observed that Mr. Ochall admitted that “he passed other karts while driving on the track that day,” and that Doe “was not the only child to veer off the track that day, as one of [apppellants’] children also veered off the track while driving.” Id. at 21. The court concluded that there was no evidence that Doe’s “actions prior to the accident amounted to aggressive driving.” Id.

[*P93]  Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand [**57]  from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855, ¶ 43, 830 N.E.2d 1252 (1st Dist.).

[*P94]  Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall. See West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 37, 985 N.E.2d 558, quoting 2 Restatement of the Law 2d, Torts, Section 500, Comment g (1965) (noting that  [HN25] “reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man”).

[*P95]  Because appellants fail to establish any genuine issues of material fact regarding whether the defendants engaged in reckless misconduct, appellants’ second assignment of error is overruled.

VI. CONCLUSION

[*P96]  The incident at the McMillens’ go-kart track which caused Mrs. Ochall’s injury was, unquestionably, a terrible and tragic accident. However, every tragic accident does not result in tort liability. Because Mrs. Ochall [**58]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

Judgment affirmed.

SADLER, J., concurs.

DORRIAN, P.J., concurs in and part dissents in part.

CONCUR BY: DORRIAN (In Part)

DISSENT BY: DORRIAN (In Part)

DISSENT

DORRIAN, P.J., concurring in part and dissenting in part

[*P97]  I respectfully concur in part and dissent in part.

[*P98]  I concur with the majority that primary assumption of the risk requires an examination of the recreational activity or sport itself. For this reason, and pursuant to Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 10, 802 N.E.2d 1116, I also agree with the majority that spectators and participants are to be treated the same and appellants’ arguments regarding the “risks to spectators” improperly attempt to shift the focus of the analysis away from the risks inherent in the activity. (Lead opinion at ¶ 48.) Consistent with [**59]  this, I concur with the majority and am not persuaded by the Third District Court of Appeals’ decision in Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002).

[*P99]  I concur with the majority that the trial court erred when it conflated the duty analysis under primary assumption of the risk with the social host duty of care under premises liability.

[*P100]  I concur with the majority that the trial court did not err when it observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part[‘] of the activity.” (Emphasis added.) (July 31, 2015 Decision at 4, quoting Gentry at ¶ 10.) (Lead opinion at ¶ 43.) However, I would find further, notwithstanding the trial court’s correct legal statement, that the trial court erred by concluding that “foreseeable risks are inherent risks of recreational activities” and in not conducting the additional analysis of whether the risk is ordinary or customary to the game. (July 31, 2015 Decision at 7.) Given this court’s three part test in Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255 (10th Dist.), which requires that in order to be considered inherent, a risk be both ordinary and foreseeable, I would interpret the term “customary” [**60]  in this context as “ordinary.” To interpret “customary” as “common” or “foreseeable” would merge the doctrines of primary and implied assumption of the risk.

[*P101]  I concur with the majority that the Supreme Court of Ohio has held that “‘[t]o be covered under the * * * doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Knoesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). (Lead opinion at ¶ 45.) I would note further that contrary to appellees’ suggestion that courts do not typically conduct a detailed analysis of whether a risk cannot be eliminated, a survey of Tenth District case law reveals that this court adheres to this requirement. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of risk is appropriate.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997) (finding the plaintiff’s “injuries occurred as a result of a commonly known danger ordinary to the sport of thoroughbred horse racing”). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 13, 15, 25 (noting that, “by its very nature, karate, as a martial art, is an inherently dangerous activity from which [**61]  the risk of harm cannot be eliminated”); Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 35, 924 N.E.2d 906 (10th Dist.) (noting that in cheerleading, “the risk [of injury] is forever present and may only be reduced to manageable levels. Manageable risks are nevertheless risks. It necessarily follows that the risk of injury is incapable of being completely eliminated”); Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 16 (affirming the trial court’s finding “that hiking is a recreational activity to which the doctrine [of primary assumption of the risk] applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night”); Main v. Gym X-Treme, 10th Dist. No. 11AP-643, 2012-Ohio-1315, ¶ 9, 12-13 (noting “[t]he rationale behind the doctrine [of primary assumption of the risk] is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable,” and finding that “tripping, slipping, and falling are all normal inherent risks” with “‘play time and gymnastic activities'”); Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 30, 49 (10th Dist.) (noting that “[i]f that activity is one that is inherently dangerous and from which the risks cannot be eliminated, a finding of primary assumption of the risk is appropriate” and finding that “[i]njury resulting [**62]  from colliding with another player on the field of play, even accidentally, is an ordinary danger of the sport of football”).

[*P102]  I concur with the majority that to determine the risks that are so inherent in an activity that they cannot be eliminated, a court must “‘focus[] exclusively upon the activity itself.'” (Lead opinion at ¶ 45, quoting Schnetz at ¶ 28.) I would clarify further that the contention that a risk must be one that is so inherent to the sport or activity that it cannot be eliminated is appropriately considered in the context of the ordinary or customary analysis. I would also suggest that in determining the same, a court should consider the goal of the primary assumption of the risk doctrine as discussed by the majority: “‘to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.'” (Lead opinion at ¶ 38, quoting Marchetti v. Kalish, 53 Ohio St.3d 95, 99, 559 N.E.2d 699 (1990), and Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248, 253, 38 Cal. Rptr. 2d 65 (3d Dist.1995) (observing that the “overriding consideration in the application of primary assumption of the risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 28 Cal.App.4th 558, 565, 33 Cal. Rptr. 2d 777 (5th Dist.1994) (noting that “[d]uty is constricted [**63]  in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).)

[*P103]  Finally, I concur with the majority’s ultimate conclusion that the trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. I dissent, however, with the majority’s consideration and determination, in the first instance, of the same.

[*P104]  Because the Supreme Court in Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996), instructs that courts must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery and because of the great impact a ruling in favor of a defendant would have, I would not determine the issue in the first instance on appeal. Rather, I would remand this case to the trial court with instructions to consider whether the risk of a go-kart veering off the track and striking objects/persons in its path meets the criteria that “(1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” (Emphasis added.) Santho at ¶ 12. In considering whether [**64]  such risk is ordinary to the game, I would instruct the court to (1) focus on the activity of go-karting itself; and (2) consider whether such risk can be eliminated without inhibiting vigorous and free participation, fundamentally changing or destroying the activity of go-karting. Such consideration necessarily involves an examination of the nature of the activity, the purpose or goals of the activity, and the rules or customs of the activity, where applicable.

[*P105]  Finally, I dissent from the majority’s consideration of the second assignment of error. Because I would reverse and remand this case for the trial court to determine, in the first instance, whether primary assumption of the risk applies, I would find to be moot the second assignment of error regarding whether the trial court erred in holding appellees did not act recklessly.2

2 I would note that appellants’ argument, pursuant to Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999), that primary assumption of the risk cannot apply because appellees “enhanced” the risk by defective design or operation, would be appropriately addressed when considering whether the exception of recklessness or willfull or wanton conduct applies to application of primary assumption of the risk.


This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).

A negligence per se claim can be stopped if the plaintiff assumed the risk under California law. This is probably a rare look at negligence per se in the fifty states.

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

State: California, Court of Appeal of California, Second Appellate District, Division Five

Plaintiff: Christian Moser

Defendant: Joanne Ratinoff

Plaintiff Claims: negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with the defendant.

Defendant Defenses: Primary Assumption of the Risk and Secondary Assumption of the Risk

Holding: for the defendant

Year: 2003

The plaintiff and the defendant participated in an “organized long-distance bicycle ride on public highways involving hundreds of participants.” The ride, the Death Valley Double Century was a 200-mile ride (double century). During the ride, the defendant swerved from the right side along the curb to the left into the plaintiff causing a collision. The plaintiff suffered injuries.

Prior to the ride, both participants signed releases. The releases explained several of the risks of the activity, but did not protect participants from claims of other participants. “The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

The case was dismissed at the trial court level because collisions are an inherent risk of cycling. The plaintiff appealed.

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

The court first looked at the requirements for the defendant to prove assumption of the risk by motion.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Under California law, a participant is generally responsible for their own injuries caused by the ordinary care or skill of another.

The court then looked at whether the plaintiff expressly assumed the risk of his injuries.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Express assumption of the risk is usually considered a written assumption of the risk. The court set out the definitions that must be met to prove express assumption of the risk in California.

The doctrine of express assumption of the risk is founded on express agreement. ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement. . . .’ That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world.

The court found that express assumption of the risk could not be applied to this case, as the defendants failed to prove that she was entitled to use the release signed by both parties before entering the race. However, the court found there could still be some value to the defendant from the release. “A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk.”

The court then looked at implied assumption of the risk, also known as secondary assumption of the risk, and whether it could be proved in this case. Under California law, implied assumption of the risk “embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”

Implied assumption of the risk was defined by the California Supreme Court as:

…a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.”

The reasoning for this is to impose a duty would place a chill on most sporting activities so that participants would not vigorously compete.

The test for implied assumption of the risk is not whether the defendant must protect the plaintiff from a known risk, but the nature of the activity.

The court then looked to determine if prior decisions had applied the defense of implied assumption of the risk to “organized non-competitive recreational bicycle riding.” However, the court did find that the risks and other factors made this type of cycling the same as other sports that implied assumption of the risk had been applied too by other California courts.

Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court said upon “[c]ompiling all of the distinguishing factors” from the cases,  an activity is a “sport” to which the primary assumption of risk doctrine applies if that activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

The court also found that although bicycles are vehicles under California law, this type of activity was not the same as driving a car. This was done for enjoyment and physical activity.

However, the assumption of risk is not a blanket defense to all claims.

The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’

Defendants have no legal duty to eliminate the risk or protect a plaintiff to the risks inherent in a sport. The next issue becomes what then are the inherent risks of a sport.

Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence.

The court then gave examples of non-inherent risks and inherent risks in sports as determined by other California courts.

Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

The court then found that two riders riding side by side, a collision between the two, or one rider riding into the other was an inherent risk of cycling.

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity.

The defendant in this case the court determined was negligent, but was not wanton or reckless or conduct so totally outside of the range of ordinary activity involved in cycling.

The final issue the court looked at is whether the claim of negligence per se is barred by express or implied assumption of the risk. Court looked at precedent, prior case law, to determine the issue and found none. There were several California Supreme Court decisions that looked at the issue but did not rule on it. On the court today, this court determined from those prior decisions that a majority, four, of the justices on the court would argue that a negligence per se claim is blocked by express assumption of the risk. “Nevertheless, a majority of the present California Supreme courts have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.”

The court upheld the ruling of the trial court, and the case was dismissed.

So Now What?

First do not assume that assumption of the risk, in any form can bar a negligence per se claim. There are several states were this would not be true.

Second, the court’s analysis of the facts and the law are easily understood and supported by the case law quoted. This is a great case to understand the two types of assumption of the risk allowed in California.

Finally, in California of two or more people riding together is that one of those people assumes the inherent risk of colliding with the other.

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Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Christian Moser, Plaintiff and Appellant, v. Joanne Ratinoff, Defendant and Respondent.

No. B153258.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE

January 31, 2003, Decided

January 31, 2003, Filed

CALIFORNIA OFFICIAL REPORTS SUMMARY A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

The Court of Appeal affirmed. It held that a waiver, signed by plaintiff prior to participating in the ride, that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants, did not inure to the benefit of defendant. However, the court held, the primary assumption of the risk doctrine was applicable. Organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. The court also held that the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the doctrine. (Opinion by Mosk, J., with Turner, P.J., and Grignon, J., concurring.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1) Summary Judgment § 26–Appellate Review–Scope of Review. — –A grant of summary judgment is reviewed de novo. The appellate court makes an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. Under Code Civ. Proc., § 437c, subd. (p)(2), a defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action.

(2) Negligence § 98–Actions–Trial and Judgment–Questions of Law and Fact–Assumption of Risk–Summary Judgment. — –When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains. Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.

(3) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk. — –A defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk.

(4) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect of Express Waiver. — –A participant in an organized, long-distance bicycle ride on public highways did not assume the risk of negligence by a coparticipant in the ride by signing, prior to taking part in the ride, a waiver that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants. An express assumption of risk agreement does not inure to the benefit of those not parties to that agreement.

(5) Negligence § 37–Exercise of Care by Particular persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect. — –The doctrine of primary assumption of the risk embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. Where the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.

(6) Negligence § 37–Exercise of Care by Particular Persons-Exercise of Care by Plaintiff–Assumption of Risk–Competitive Sports. — –Under the doctrine of primary assumption of risk, a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. Whether the doctrine applies depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of the doctrine is to avoid imposing a duty that might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.

(7) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Analytical Frameword. — –In assumption of the risk analysis, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.

(8a) (8b) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Orgainzed Bicycle Ride. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the trial court properly granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. Such organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. Defendant’s movements may have been negligent, but they were not intentional, wanton, or reckless, nor were they totally outside the range of ordinary activity involved in the sport. Thus, the accident was within the risks assumed by plaintiff and defendant when they chose to participate.

[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090C.]

(9) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Risks Not Assumed. — –Even if an activity is one to which the primary assumption of the risk doctrine applies, there are certain risks that are deemed not assumed and certain injury-causing actions that are not considered assumed risks of the activity. An activity that is not inherent in the sport is not subject to the doctrine. Drinking alcoholic beverages, for example, is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, and proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

(10) Negligence § 40–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Violation of Safety Law–Vehicle Code Provisions Applicable to Bicycle Riding. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the primary assumption of the risk doctrine. The doctrine is not displaced by a violation of a statute that does not evince legislative intent to eliminate the assumption of the risk defense.

COUNSEL: Law Offices of Michael L. Oran, Michael L. Oran, Kathy B. Seuthe; Law Offices of Garry S. Malin and Garry S. Malin for Plaintiff and Appellant.

Barry Bartholomew & Associates, Michael A. Nork and Kathryn Albarian for Defendant and Respondent.

JUDGES: (Opinion by Mosk, J., with Turner, P. J., and Grignon, J., concurring.)

OPINION BY: MOSK

OPINION

[*1214] [**200] MOSK, J.

Plaintiff and appellant Christian Moser (Moser) and defendant and respondent Joanne Ratinoff (Ratinoff) participated in an organized, long-distance bicycle ride on public highways involving hundreds of participants. Moser signed an “Accident Waiver and Release of Liability” form for the benefit of the event holders, sponsors and organizers in which Moser expressly assumed the risk of various injuries, including those caused by other participants. During the ride, Ratinoff swerved into Moser, causing him to crash and sustain injuries. Moser sued Ratinoff for general negligence. Ratinoff filed a motion for summary judgment on the ground that a collision between bicycle riders was an inherent risk in the ride, and [*1215] therefore the action was barred by [***2] the primary assumption of risk doctrine enunciated in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight). Moser opposed the motion on the grounds that the primary assumption of risk doctrine did not apply because the collision was not an inherent risk of the activity and because Ratinoff’s violation of provisions of the California Vehicle Code precluded application of the doctrine. The trial court granted summary judgment in Ratinoff’s favor. We hold that the primary assumption of risk doctrine applies to the organized bicycle ride, and that a violation of a statute does not displace that doctrine. Accordingly, we affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND 1

1 We state the facts in accordance with the standard of review stated post.

Moser and Ratinoff collide during a bicycle ride

In February 1999, Moser registered to participate in the Death Valley Double Century bicycle ride, a 200-mile, noncompetitive bicycle ride on public [***3] highways. Hugh Murphy Productions organized the ride in which approximately 600 bicycle riders participated. 2 Before participating in the ride, Moser signed a document provided by the organizers entitled “Accident Waiver and Release of Liability” (the release), releasing the organizers and stating, “I acknowledge that this athletic event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to those caused by . . . actions of other people including but not limited to participants. . . . I hereby assume all of the risks of participating &/or volunteering in this event.” The organizer required riders to wear helmets and to have bicycle lights.

2 One of the forms refers to the promoter as “Badwater Adventure Sports.”

The ride had no designated start time. On the day of the accident, Moser and his friend, David Warshawsky (Warshawsky), began the ride at 4:00 a.m. At a rest stop, [***4] Moser and Warshawsky encountered Ratinoff, another participant in the ride. The three cyclists left the rest stop together, with Warshawsky and Ratinoff riding side-by-side and Moser riding behind them. At some point, they began riding single file.

Moser was cycling close to the right-hand side of the road. Ratinoff said that she came from behind Moser’s left side and passed him or rode at his left side. Moser said Ratinoff came up from behind him and rode next to him on his left side. While she was riding on Moser’s left side, an Inyo County Sheriff’s Deputy pulled his car approximately four or five car lengths behind [*1216] them and stayed there for several minutes. Ratinoff turned to look at the [**201] police car, and she then told Moser, “I have to come over.” According to Ratinoff, a “split second” later, she moved to her right toward Moser.

As Ratinoff moved to her right, she made contact with Moser, who nevertheless was able to retain control of his bicycle. Within seconds, Ratinoff again collided with Moser, causing him to fall off his bike and to sustain injuries. At the time of the collision, Ratinoff and Moser were riding at an approximate speed of 15 to 20 miles per hour.

Moser [***5] sues Ratinoff, and Ratinoff files a motion for summary judgment

Moser commenced an action against Ratinoff and in his complaint alleged that Ratinoff “negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with” Moser’s bicycle. Ratinoff alleged assumption of risk as an affirmative defense.

Ratinoff filed a motion for summary judgment in which she contended that she was not liable to Moser because under the primary assumption of risk doctrine she did not breach a duty of care owed to him. Moser, in opposition to the motion, argued that the primary assumption of risk doctrine does not apply to noncompetitive bicycle riding and that Ratinoff violated Vehicle Code sections 21202, subdivision (a) (operating a bicycle as close “as practicable to the right-hand curb or edge of the roadway”), and 22107 (moving a vehicle to the left or right “with reasonable safety”), thereby giving rise to a presumption of negligence and rendering the primary assumption of risk doctrine inapplicable.

The trial court granted the summary judgment motion and entered judgment against Moser. The trial court denied Moser’s motion [***6] for new trial. Moser does not raise the denial of his new trial motion as a basis for his appeal.

STANDARD OF REVIEW

(1) [HN1] We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal. Rptr. 2d 356].) We make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal. Rptr. 2d 35].) A defendant moving for summary judgment meets its burden of showing that [*1217] there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal. Rptr. 2d 841, 24 P.3d 493].) [***7] (2))

[HN2] “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395 [36 Cal. Rptr. 2d 418].) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight, supra, 3 Cal.4th at p. 313; Record v. Reason (1999) 73 Cal.App.4th 472, 479 [86 Cal. Rptr. 2d 547].) [**202]

DISCUSSION

[HN3] A person is generally responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Civ. Code, § 1714.(3)) But a defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk. (Knight, supra, 3 Cal.4th at pp. 308, fn. 4, 309-321.)

I. Express assumption of risk

Before reaching the issue of implied assumption of risk, we must determine if Moser expressly assumed the risk of a collision based [***8] on the release he signed. [HN4] An express assumption of risk is a complete defense to a negligence claim. (Knight, supra, 3 Cal.4th at p. 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 [59 Cal. Rptr. 2d 813]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012 [54 Cal. Rptr. 2d 330].) Moser released the “event holders, sponsors and organizers,” and also acknowledged the risks of the ride, including those caused by other participants. The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal. Rptr. 2d 781] (Westlye), the plaintiff, who was injured skiing, filed an action against the ski shop from which he rented allegedly defective ski [*1218] equipment and the distributors of the equipment. He had signed a written agreement with the ski shop in which he accepted the equipment for use “as is”; agreed that he understood that there ” ‘are no guarantee[s] for the user’s safety’ “; acknowledged that there is ” ‘an inherent risk of injury in the sport of skiing, and the use of any ski equipment, and expressly assume[d] the risks for any [***9] damages to any persons or property resulting from the use of this equipment’ “; and released the ski shop from any liability. (Id. at p. 1725.)

The distributors of the equipment contended that “as a matter of law an express assumption of risk is good as against the whole world” and therefore precluded any liability against the distributors. (Westlye, supra, 17 Cal.App.4th at p. 1729.) In holding that the plaintiff had not released the distributors of the equipment, the court said, “defendants fail to submit, and we have not discovered, any authority for [the distributors’] proposition. The doctrine of express assumption of the risk is founded on express agreement. [Citations.] ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ [Citations.] Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect [***10] to the risks encompassed by the agreement. . . .’ [Citation.] That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world. [P] . . . [P] We conclude the distributor defendants have failed to establish that they are entitled to the benefit of the written agreement between plaintiff and [the ski shop].” (Id. at pp. 1729-1730.)(4))

Westlye, supra, 17 Cal.App.4th 1715, states the existing law that [HN5] an express assumption of risk agreement does not inure to the benefit of those not parties to that agreement. Accordingly, [**203] Moser did not expressly assume the risk of negligence by a coparticipant in the ride. A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk. (See discussion post.)

II. Implied assumption of risk

The subject of implied assumption of risk has generated much judicial attention. Its modern history began when California eliminated contributory negligence and adopted a comparative negligence system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226].. [***11] [*1219] Thereafter, the California Supreme Court–in two companion cases, Knight, supra, 3 Cal.4th 296, and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724] (Ford)–considered the “proper application of the ‘assumption of risk’ doctrine in light of [the] court’s adoption of comparative fault principles.” (Knight, supra, 3 Cal.4th at p. 300.) (5))

In Knight, supra, 3 Cal.4th 296, the Supreme Court, in a plurality opinion, set forth the doctrine of primary assumption of the risk. That doctrine, which is now established as “the controlling law” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 [68 Cal. Rptr. 2d 859, 946 P.2d 817] (Cheong)), “embodies a legal conclusion that [HN6] there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk. . . .” (Knight, supra, 3 Cal.4th at p. 308.) When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability. (Ibid.) 3

3 But see the Restatement Third of Torts, section 2 and comment i, pages 19, 25 (“Most courts have abandoned implied assumptions of risk as an absolute bar to a plaintiff’s recovery”).

[***12] (6) In Knight, supra, 3 Cal.4th 296, the court concluded that a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” (Id. at p. 316.) In Ford, the court applied the rule to noncompetitive, non-team-sporting activities–in that case waterskiing. (Ford, supra, 3 Cal.4th 339.)

[HN7] Whether the primary assumption of risk doctrine applies–which issue is, as noted above, a question of law–“depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.” (Knight, supra, 3 Cal.4th at p. 313.) “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated [***13] activity and thereby alter its fundamental nature.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253 [38 Cal. Rptr. 2d 65].)

III. Activity subject to primary assumption of risk

(7) In Knight, supra, 3 Cal.4th at page 309, the court said that “whether the defendant owed a legal duty to protect the plaintiff from a [**204] particular risk [*1220] of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” The court suggested that generally, the primary assumption of risk doctrine applies in a “sports setting.” (Id. at pp. 309-310, fn. 5.) (8a)) Thus, the issue in the instant case is whether an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies.

The court in Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635 [53 Cal. Rptr. 2d 657], stated, “Knight may require a court to determine a question of duty in sports settings while factually uninformed of how the sport is [***14] played and the precise nature of its inherent risks.” To make a decision concerning duty we must know the nature of a particular sport, and even if we do have such knowledge, we still may have no idea how imposing liability will affect or “chill” the sport–which is a major factor in making a determination of duty. (See American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [93 Cal. Rptr. 2d 683] [court said “expert opinion may inform the court on these questions”].) Nevertheless, under the current state of the law established by Knight, we must somehow make such a determination.

As guidance, there are cases in which courts have determined whether or not the primary assumption of risk applies to a particular activity. There are a number of cases involving sports activities in which the court found a primary assumption of risk. (Cheong, supra, 16 Cal.4th 1063 [snow skiing]; Ford, supra, 3 Cal.4th 339 [waterskiing]; Knight, supra, 3 Cal.4th 296 [touch football]; Sanchez v. Hillerich & Bradsby (2002) 104 Cal.App.4th 703 [128 Cal. Rptr. 2d 529] [collegiate baseball]; Distefano v. Forester (2001) 85 Cal.App.4th 1249 [102 Cal. Rptr. 2d 813] [***15] (Distefano) [off-roading]; Calhoon v. Lewis (2000) 81 Cal.App.4th 108 [96 Cal. Rptr. 2d 394] [skateboarding]; American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th 30 [golf]; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428 [89 Cal. Rptr. 2d 920] [lifeguard training]; Record v. Reason, supra, 73 Cal.App.4th 472 [tubing behind a motorboat]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939 [80 Cal. Rptr. 2d 638] [wrestling]; Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal. Rptr. 2d 801] [gymnastics stunt during cheerleading]; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47 [72 Cal. Rptr. 2d 337] [little league baseball]; Domenghini v. Evans (1998) 61 Cal.App.4th 118 [70 Cal. Rptr. 2d 917] [cattle roundup]; Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551 [68 Cal. Rptr. 2d 58] [sport fishing]; Staten v. Superior Court, supra, 45 Cal.App.4th 1628 [ice skating]; [*1221] Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430 [52 Cal. Rptr. 2d 812] [football practice drill]; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525 [50 Cal. Rptr. 2d 671] [***16] [judo]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040 [48 Cal. Rptr. 2d 922] [rock climbing]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th 248 [river rafting]; O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 [35 Cal. Rptr. 2d 467] [snow skiing]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670] [sailing].) In some other recreational activities, [**205] courts have held that there was no primary assumption of risk. (Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217] [boating passenger]; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 [21 Cal. Rptr. 2d 178] [recreational dancing].)

We have found no case that considers primary assumption of risk in connection with organized, noncompetitive, recreational bicycle riding. Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court in Record v. Reason, supra, 73 Cal.App.4th at page 482, said upon “[c]ompiling all of the distinguishing factors” from the cases, [HN8] an activity is a “sport” to which the primary assumption of risk doctrine applies if that [***17] activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

It is true that bicycle riding is a means of transportation–as is automobile driving. Normal automobile driving, which obviously is not an activity covered by the assumption of risk doctrine, requires skill, can be done for enjoyment, and entails risks of injury. But [HN9] organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. 4 Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge. Moser acknowledged in the release he signed that the activity is “an athletic event that is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss.” In view of these considerations, the organized, long-distance, group bicycle ride qualifies [***18] as a “sport” for purposes of the application of the primary assumption of risk doctrine.

4 We express no opinion as to such other forms of recreational bicycle riding.

IV. Inherent risk

(9) [HN10] Even if the activity is one to which the primary assumption of risk applies, there are certain risks that are deemed not assumed, and certain [*1222] injury-causing actions that are not considered assumed risks of the activity. The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood [***19] of injury above that which is inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827 [89 Cal. Rptr. 2d 519].) Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1394.) A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so [**206] reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence. (Knight, supra, 3 Cal.4th at pp. 320-321.)

[HN11] Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1388.) On the other hand, in various sports, going too fast, [***20] making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. (See Cheong, supra, 16 Cal.4th 1063; Distefano, supra, 85 Cal. App. 4th 1249; Record v. Reason, supra, 73 Cal.App.4th 472.)(8b))

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. 5 The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity. If liability attached to entanglements and collisions among 600 bicycle riders, the recreational sport of an organized bicycle ride likely would be adversely affected.

5 Compare Mark v. Moser (Ind. Ct.App. 2001) 746 N.E.2d 410 (inherent risk in a competitive cycling race is that a competitor may attempt to cut in front of a coparticipant to advance position).

[***21] Ratinoff’s movements toward the right side of the road that caused her to collide with Moser may have been negligent, but they were not intentional, [*1223] wanton or reckless or conduct “totally outside the range of ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at pp. 320-321.) Therefore, the accident at issue in this case is within the assumed risks of the organized bicycle ride in which Moser and Ratinoff were engaged. 6

6 There are traffic-related risks that might not be considered inherent in the activity involved here, such as those involving automobile negligence. (See Story v. Howes (N.Y. App. Div. 1973) 41 A.D.2d 925 [344 N.Y.S.2d 10] [“mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car”]; Bell v. Chawkins (Tenn. Ct.App. 1970) 62 Tenn. App. 213 [460 S.W.2d 850] [bicyclist did not assume risk dog would bite her].)

V. Effect of statute

Moser asserts that the primary [***22] assumption of risk doctrine does not bar a claim when, as here, Ratinoff has violated statutes.

A. Pleading requirement

Moser’s failure to allege in his complaint that defendant’s conduct violated any statutory duties owed to plaintiff would, under Distefano, supra, 85 Cal. App. 4th at page 1266, procedurally bar plaintiff from raising the effect of a statutory violation in opposing a motion for summary judgment. Although this holding in Distefano appears inconsistent with long-standing authority that a plaintiff’s allegations of negligence include statutory violations that constitute negligence per se (Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 680 [255 P.2d 802]; Karl v. C. A. Reed Lumber Co. (1969) 275 Cal. App. 2d 358, 361-362 [79 Cal. Rptr. 852]), we need not determine this procedural issue because of our conclusion that the statutory violations do not, under present [**207] law, preclude the assumption of risk doctrine.

B. Statutory violations do not displace the Knight rule

(10) Moser contends that defendant’s violations of various Vehicle Code sections constitute negligence per se, and thus preclude the application [***23] of the primary assumption of risk doctrine. The California Supreme Court has addressed this issue in two cases–Ford, supra, 3 Cal.4th 339, and Cheong, supra, 16 Cal.4th 1063–and has produced a number of opinions, leading one court to say “there appears to be no clear consensus on the high court about this issue.” (Campbell v. Derylo, supra, 75 Cal.App.4th at p. 829, fn. 3.) Nevertheless, a majority of the present California Supreme Court have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.

[*1224] The lead opinion in Ford, supra, 3 Cal. 4th 339, which case involved a waterskiing accident, dealt with whether Harbors and Navigation Code section 658, subdivision (d), 7 coupled with the negligence per se doctrine (as codified in Evid. Code, § 669), 8 established a rebuttable presumption that the defendant breached his duty of care to the plaintiff. That opinion concluded that the violation of Harbors and Navigation Code section 658 was inapplicable because the plaintiff [***24] did not fall within the statute’s protected class. (Id. 3 Cal.4th at p. 350.) Three of the justices found that the plaintiff was within the class of persons Harbors and Navigation Code section 658 was intended to protect, and therefore, under Evidence Code section 669, the defendant violated a legal duty of care to the plaintiff. (Id. at pp. 364-369 (conc. & dis. opn. of George, J.); id. at p. 369 (dis. opn. of Mosk, J.).) 9 Three other justices who had disagreed with the Knight plurality opinion and would have “adhere[d] to the traditional consent approach” to assumption of risk (id. at p. 351, fn. 1 (conc. opn. of Kennard, J.)), stated that the statute is not “the type of safety enactment that would preclude defendant . . . from asserting assumption of risk as a defense barring plaintiff . . . from recovering damages in his negligence action.” (Id. at p. 363 (conc. opn. of Kennard, J.).)

7 Harbors and Navigation Code section 658 provides that no person shall operate a vessel so as to cause, among other things, water skis to collide with any object or person.

[***25]

8 Evidence Code section 669, subdivision (a), provides: “The failure of a person to exercise due care is presumed if: [P] (1) He violated a statute, ordinance, or regulation of a public entity; [P] (2) The violation proximately caused death or injury to person or property; [P] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [P] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (See also Vesely v. Sager (1971) 5 Cal.3d 153, 164-165 [95 Cal. Rptr. 623, 486 P.2d 151].)

9 “Justice Arabian’s [lead] opinion in Ford implicitly assumed, and the opinions of Justice George, joined by Chief Justice Lucas, and Justice Mosk expressly concluded, that if the four elements of section 669(a) were satisfied, that statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Cheong, supra, 16 Cal.4th at p. 1071.)

[***26] In Cheong, supra, 16 Cal.4th 1063, two friends were skiing together and collided, resulting [**208] in litigation. The trial court granted summary judgment in the defendant’s favor on the ground that a collision is an inherent risk of downhill skiing. On appeal, the plaintiff argued that the defendant’s violation of a county ordinance delineating the duties of skiers resulted in liability under Evidence Code section 669 and foreclosed the application of the primary assumption of risk doctrine. The ordinance expressly provided that a skier assumes the “inherent risks” of skiing, including the risk of collision with other skiers. (Id. at pp. 1069-1070.) The majority held that the ordinance did not create any duty other than that available under common law. The court said that “a number of the justices who have signed this [*1225] majority opinion” in Cheong questioned the conclusion of four justices in Ford that if the elements of Evidence Code section 669 were satisfied, a “statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Id. at p. 1071.) [***27] The court added that the point need not be resolved because the elements of Evidence Code section 669 had not been met–the plaintiff had “not demonstrated that he is one of the class of persons the ordinance was intended to protect.” (Ibid.) The court therefore affirmed the grant of summary judgment.

A concurring opinion, joined by two justices, expressed the view that “[t]he Knight standard of primary assumption of risk still applies even if the violation of an ordinance or statute, combined with Evidence Code section 669, creates a presumption of negligence.” (Cheong, supra, 16 Cal.4th at p. 1079 (conc. opn. of Chin, J., 10 joined by Baxter, J. and Brown, J.).) A fourth justice stated that statutory obligation along with Evidence Code section 669 did not impose a duty of care when Knight eliminated a sports participant’s duty of care. (Id. at p. 1074 (conc. opn. of Kennard, J.).) Three justices took a contrary view, with one stating that the violation of a statute displaces the “no-duty rule of Knight” (id. at p. 1073 & fn. 1 (conc. opn. of [***28] Mosk, J.)) and the others stating that Evidence Code section 669 “may transform an appropriate statute into a legal duty of due care upon the defendant.” (Id. at p. 1077 (conc. opn. of Werdegar, J., joined by George, C. J.).)

10 Justice Chin also authored the majority opinion.

The Supreme Court has not conclusively determined whether or not a violation of law can displace the primary assumption of risk doctrine. Nevertheless, four justices presently sitting on the California Supreme Court 11 –a majority–expressed the view that Evidence Code section 669 does not itself override Knight, but rather that one must ascertain whether the violated statute was intended to do so. Only two justices now on the court 12 have concluded that the violation of a safety statute or ordinance designed to protect persons in the position of a plaintiff precludes the application of the implied assumption of risk doctrine.

11 Justices Baxter, Kennard, Chin and Brown.

[***29]

12 Chief Justice George and Justice Werdegar.

The appellate court in Distefano, supra, 85 Cal.App.4th 1249, addressed this question. In that case, two men, one on a motorcycle and another in a dune buggy, were “off-roading.” After [**209] coming up opposite sides of a blind hill, they collided. Plaintiff contended that the Knight rule did not bar his action because defendant owed him statutory duties under Vehicle Code sections 38305 (proscribing driving off-road vehicles at an unreasonable or [*1226] imprudent speed) and 38316 (proscribing driving off-road vehicles with a willful and wanton disregard for the safety of other persons or property). (Id at p. 1265.)

Although the court held that a claim based on a violation of a statute was barred for procedural reasons, the court proceeded to address the merits of the contention that the Vehicle Code, along with Evidence Code section 669, imposed a tort duty that rendered the primary assumption of risk doctrine unavailable. (Distefano, supra, 85 Cal.App.4th at pp. 1266-1267.) [***30] The court stated that Vehicle Code sections 38305 and 38316, which provisions were enacted before the Supreme Court’s decision in Knight, did not evince any legislative intent to supersede or modify an assumption of risk doctrine later declared by Knight. (Distefano, at p. 1273.) The court therefore concluded that the statutory provisions “do not abrogate the Knight primary assumption of the risk doctrine, and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight.” (Id. at p. 1274.)

Because a majority of the current Supreme Court justices have expressed the view that [HN12] a violation of a statute that indicates no legislative intent to eliminate the assumption of risk defense does not displace the primary assumption of risk doctrine, and because there are no cases inconsistent with that view, we adopt the Distefano court’s conclusion. (Distefano, supra, 85 Cal.App.4th 1249.) Although the facts show that Ratinoff violated provisions of the Vehicle Code designed to protect persons using public roads, based on our conclusion [***31] as to the present state of the law, such violations do not nullify Moser’s assumption of the risk.

CONCLUSION

Under the present state of the law, as applied here, the result is reasonable. By knowingly participating in a sporting event in which what occurred is an evident risk, Moser is not entitled to a recovery from Ratinoff.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

Turner, P. J., and Grignon, J., concurred.

Appellant’s petition for review by the Supreme Court was denied April 23, 2003.


Assumption of the Risk to be a bar to a claim the defendant must not owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.

The old idea of you knew what you were doing could result in an injury, and you did it anyway does not necessarily prevent lawsuits now days.

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

State: California, Court of Appeal of California, Fourth Appellate District, Division Three

Plaintiff: Carl Kindrich, III, Barbara Kindrich, and Michael Kindrich

Defendant: Long Beach Yacht Club and Charles Fuller, skipper

Plaintiff Claims: negligent in their use and maintenance of both the boat and the dock, Barbara claimed loss of consortium, and Michael claimed emotional distress

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2008

The facts in this case are easy, and to regular readers, sort of annoying. The plaintiff’s father died. The deceased had been a member of the defendant yacht club and wanted to be buried at sea. The yacht club loaned a boat and a skipper to the deceased family to take his ashes out to sea.

Boarding the boat, there was a set of stairs that allowed everyone to climb on the boat. Upon returning the stairs were removed. The Defendant/Skipper/Boat Captain asked the plaintiff to jump down to tie the boat up. He did, injuring his knee.

Free boat to carry out his father’s wishes, knowing the risk, and he still sues. The plaintiff sued the Yacht Club and the skipper, both of whom were donated for disposing the ashes of the plaintiff’s father.

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

The defendant yacht club filed a motion to dismiss based on assumption of the risk. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

The court went through a detailed analysis of assumption of the risk in California. The basis of the analysis was the California Supreme Court decision in Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870.

The court first started by defining when assumption of the risk is applied as a complete bar and the differences between primary and secondary assumption of the risk.

Assumption of risk that is based upon the absence of a defendant’s duty of care is called “‘primary assumption of risk.’ ” “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.”

Primary assumption of the risk is a complete bar to a claim. “Primary assumption of risk, “where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense.”

The court stated that the decision in Knight changed how the court should view assumption of the risk. “Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question.”

In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule”

The old definition looked at whether the plaintiff knew about the risk and voluntarily assumed the risk. Now the court looks at what was going on to determine what happened. Even if the plaintiff did not understand the activity or the risks, by engaging in the activity, they may still assume the risks. This in many senses is a broader definition which helps the defendant. However, when the activity is not a sport, it is a very narrow definition.

The court then looked at all the California cases that had determined that the defendant did not owe a duty to the plaintiff; therefore, the assumption of the risk was a complete bar to the plaintiff’s claims. From that it determined that the complete bar applied if the plaintiff was participating in a sport.

After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.”

Jumping off a boat is not a sport. It is a common everyday occurrence. As such the activity is not one where the plaintiff assumes the risk because the defendant might owe the plaintiff a duty. The existence of the stairs to begin the boat ride is proof that a duty may be owed. The case was reversed and sent back for further proceedings.

So Now What?

So I’ve posted a lot of cases looking at assumption of the risk. However, you need to make sure you understand that normally, assumption of the risk is not a complete bar to a lawsuit as in this case. For assumption of the risk to bar a plaintiff’s suit, the plaintiff must be involved in an activity or sport.

Here the plaintiff was jumping off a boat. Although the facts make it appear like the suit should be thrown out because when you jump from a boat, it is obvious you can be hurt. The rule states it only applies to how much the trier of fact thinks you were responsible for your injury not whether you assumed the risk as in the past.

Assumption of the risk may still be a complete bar to recovery. It will be dependent upon the state and how the jury sees the facts. However, that must be decided by the trier of fact, and cannot be decided by motions.

By that I mean if the plaintiff does not prove that the defendant was at least or 50 or 51% liable (dependent upon the state) for their injury the plaintiff loses. In some states, the percentage of the plaintiff’s fault only reduces the award to the plaintiff by that percentage the plaintiff is liable, so if the plaintiff is found to be 90% liable the plaintiff only recovers 10% of the damages.

The issue as to how assumption of the risk is to be applied to the facts is based on whether the defendant owed a duty to the plaintiff. In a sport, the defendant does not owe any duty unless the acts of the defendant are reckless or intentional, generally (varies by state). Here, the stairs that were there originally created a duty when they were removed.

The reasoning behind keeping assumption of the risk in some activities as a complete bar is, if the risks are removed from the sport, which the defendant would have to do if they were to protect themselves from suit, the sport would not exist. The risk is part and parcel of the sport. Alternatively, without the risks, the sport would not exist.

The controlling term is “sport”. It does not have to be a team sport or a contact sport, but it has to be more than couch surfing or jumping from a boat.

If you are engaging in the activity for a challenge, a thrill, or enjoyment and requires physical exertion, then assumption of the risk may be a complete bar to a claim by the plaintiff.

You could always put that in your release too………….. J

There is a dissent in this case that reasons that “No good deed goes unpunished” and the actions of the plaintiff fit the definition of assumption of the risk, and the older result should apply in this case.

How would they ever be able to tie the boat up if in this fact situation? If a passenger on the boat cannot jump off the boat to tie the boat up, the captain either has to hand over control of the boat to a passenger (see any problems here) or the boat must wait until someone comes down and brings a set of stairs.

Never thought I would write about a “Yacht Club.”

What do you think? Leave a comment.

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Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Carl Kindrich III et al., Plaintiffs and Appellants, v. Long Beach Yacht Club et al., Defendants and Respondents.

G038290

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE

167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

October 28, 2008, Filed

COUNSEL: Brunick, McElhaney & Beckett and Steven K. Beckett for Plaintiffs and Appellants.

Cogswell Nakazawa & Chang, Christina L. Owen and Dena S. Aghabeg for Defendants and Respondents.

JUDGES: Opinion by Rylaarsdam, J., with Sills, P. J., concurring. Dissenting opinion by Bedsworth, J.

OPINION BY: Rylaarsdam [*1255]

OPINION

[**825] RYLAARSDAM, J.–Plaintiff Carl Kindrich III was injured while disembarking from a boat after participating in casting his late father’s ashes [**826] into the ocean. He sued defendants Long Beach Yacht Club, the owner of the boat and the dock, and Charles Fuller, the boat’s skipper, alleging they had been negligent in their use and maintenance of both the boat and the dock–specifically because they failed either to have someone on the dock to assist in tying off the boat when it returned, or to ensure that the portable steps, previously used in boarding the boat, would be available for his use when he attempted to disembark. Carl’s wife, Barbara, and son, Michael, also sued. Barbara claimed loss of consortium, and Michael claimed emotional distress suffered as an aural percipient witness to his father’s injury. (Because [***2] all three plaintiffs have the same last name, we will refer to them by their first names to avoid confusion and not out of disrespect.)

The trial court granted summary judgment to defendants, reasoning the doctrine of primary assumption of risk applied to Carl’s decision to jump off the boat onto the dock. All plaintiffs appeal, contending the court improperly concluded that the act of jumping onto the dock was an activity subject to the complete defense of primary assumption of risk. We agree that the court’s analysis was incorrect. Carl was not engaged in the type of sporting event where the doctrine of primary assumption of risk should be applied. At most Carl may have assumed risks, categorized as secondary assumption of risk, which are subsumed in contributory negligence. Whether he was contributorily negligent and, if so, how his negligence compares with that of defendants, if any, are questions of fact to be resolved by the trier of fact.

Defendants also contend summary judgment was properly granted because they were not negligent. But this is another question of fact and not subject to summary judgment. Defendants’ additional issues, whether Barbara suffered damages and whether [***3] Michael’s awareness of his father’s accident qualifies him as a “bystander” entitled to recover on a theory of negligent infliction of emotional distress, also raise questions of fact.

We therefore reverse the summary judgment.

FACTS AND PROCEDURAL HISTORY

The complaint alleges that plaintiffs and some of their relatives and friends gathered at the Yacht Club to participate in a “burial at sea” of the ashes of Carl’s late father. The Yacht Club arranged for the attendees to be taken to the burial site on a boat it owned and maintained and assigned Fuller to pilot that boat. The Yacht Club provided portable stairs on the dock to assist the [*1256] attendees in boarding. Plaintiffs contend that, when the boat returned to the dock, the portable steps were no longer in place. According to the complaint, Fuller told Carl to tie off the boat; there was no one on the dock waiting to do so. As Carl “started to jump from the side of the boat onto the dock … , the boat and dock moved relative to each other causing [Carl] to fall and injure himself.”

Plaintiffs allege causes of action for Carl’s personal injury, Barbara’s loss of consortium, and emotional distress suffered by Michael when he witnessed [***4] his father’s accident.

Defendants moved for summary judgment. They argued that Carl’s claim failed as a matter of law because (1) he assumed any risk of injury from his voluntary decision to jump onto the dock from the boat; and (2) they did not breach any duty of care they might have owed him and had no actual or constructive notice that the portable stairs may not have been in place when the boat returned to the [**827] dock. They also asserted that Barbara’s claim failed as a matter of law, both because it was derivative of Carl’s claim and because her discovery responses revealed no loss of consortium damages. Finally, defendants maintained Michael’s claim failed as a matter of law because it was derivative of Carl’s and because Michael was not actually aware of his father’s injury until after it had occurred.

These are the relevant undisputed facts offered in support of the motion: Carl’s father, a member of the Yacht Club before he died, had expressed the wish to be “buried at sea.” The Yacht Club agreed to assist with such a burial and permitted the Kindrich family to use one of its boats, without charge, for the ceremony. The Yacht Club also agreed to let Fuller, one of its long-standing [***5] members and a good friend of Carl’s father, pilot the boat for the ceremony.

Carl, Barbara, and Michael, along with other family members, used portable steps located on the dock to board the boat for the ceremony. After the ceremony was over, Carl and Michael were up on the bridge with Fuller, who piloted the boat back to the dock. According to Carl’s testimony, “[a]fter the burial, we were bringing the boat in and … not too far from the dock, [Fuller] looked to me and says ‘We have to tie up the boat, and someone else will have to help.’ And Michael and I were the only two on the bridge … . And so Michael said that he would help … . [¶] … When [Fuller] turned the boat into the dock and we had gotten up to the dock and we were getting ready to get off the boat, Mike, my son, jumped to the dock. We didn’t see the steps. The steps weren’t there. And then after Mike jumped off, I jumped off, also … .” [*1257]

Carl stated that at the moment he jumped off the boat, it was hit by the wake from another boat, causing it to “go up as he stepped off the boat and when he came down onto the deck, he broke his leg.” The boat used for the burial ceremony does not require more than two [***6] people to tie it up when it reaches the dock–one person to operate the boat and one person on the dock to tie the lines.

Plaintiffs opposed the summary judgment, arguing this was not a proper case for applying the doctrine of primary assumption of the risk, and the case could not be summarily adjudicated on the basis that defendants acted with reasonable care as a matter of law. Plaintiffs argued there were numerous factual disputes relating to whether defendants satisfied the duty of care they owed to the passengers on their boat, and those issues must ultimately be resolved by a jury.

At the hearing, the court explained its initial thinking in favor of granting the summary judgment: “We have some conflicts in the facts as to whether he jumped, or stepped, or lowered himself, or whatever, but that doesn’t matter. What didn’t happen was he wasn’t pushed. He wasn’t ordered. He voluntarily undertook an activity that was inherently dangerous; namely, disembarking from a moving boat obviously onto the dock and he hurt himself. [¶] I believe that without really much hesitation that … primary assumption of the risk applies and the motions should be granted for summary judgment.”

Although [***7] plaintiffs’ counsel attempted to persuade the court that Fuller directed Carl to assist in tying up the boat, and thus his decision to jump from the boat should not be regarded as voluntary, the court did not agree. “[Carl] assumed the risk of something in this recreational activity going wrong. [¶] It did go wrong. The precise wrong is irrelevant. One way or the other he voluntarily disembarked the boat … with the idea of going onto [**828] the dock, and this was an unsafe thing to do.”

The formal order granting the motion cited two bases. First, the court found that “even if the portable steps were actually missing when the vessel … arrived back at dock after the burial at sea, [d]efendants had no notice, constructive or actual, of their absence. … [¶] The Court additionally finds that [d]efendants are entitled to summary adjudication on their Fourth Affirmative Defense because when [p]laintiff … made the deliberate and conscious decision to jump from the vessel … to the dock, he, with full knowledge thereof, knowingly and voluntarily assumed the risk of sustaining injury. (See Meintsma v. United States [(9th Cir. 1947)] 164 F.2d 976 … ; see also DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [46 Cal. Rptr. 2d 468] [***8] (‘[It] is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.’).)” [*1258]

The order granted summary judgment against Barbara and Michael as well, concluding Barbara’s claim for loss of consortium was derivative as a matter of law and that any distinct claim for emotional distress was precluded by the fact she did not actually witness Carl’s injury. As to Michael’s claim, the court concluded that a bystander’s recovery for extreme emotional distress was dependent upon a determination the injury he witnessed was negligently inflicted. Since Carl’s negligence claim failed, Michael’s did as well.

DISCUSSION

Primary Versus Secondary Assumption of Risk

(1) Even were we to conclude that Carl’s decision to jump off the boat was a voluntary one, and that therefore he assumed a risk inherent in doing so, this is not enough to provide a complete defense. [HN1] Because voluntary assumption of risk as a complete defense in a negligence action was abandoned in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal. Rptr. 858, 532 P.2d 1226], only the absence of duty owed a plaintiff under the doctrine of primary assumption of risk would provide such a defense. But that doctrine does not come [***9] into play except when a plaintiff and a defendant are engaged in certain types of activities, such as an “active sport.” That was not the case here; plaintiff was merely the passenger on a boat. Under Li, he may have been contributorily negligent but this would only go to reduce the amount of damages to which he is entitled.

Before Li, contributory negligence and voluntary assumption of risk were distinct and complete defenses in an action for negligence. Under certain circumstances, the “last clear chance” doctrine provided relief from the harshness of the rules. Li changed all that. It adopted the doctrine of comparative negligence and held that “[t]he [HN2] doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence; both of these are to be subsumed under the general process of assessing liability in proportion to negligence.” (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 829.)

Li recognized that there are at least two distinct forms of assumption of risk. “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory [***10] negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, [**829] plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence … . [*1259] Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citation.]” (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824-825.)

(2) So, [HN3] to the extent that “‘”a plaintiff unreasonably [***11] undertakes to encounter a specific known risk imposed by a defendant’s negligence,”‘” he or she is subject to the defense of comparative negligence but not to an absolute defense. (Knight v. Jewett (1992) 3 Cal.4th 296, 305-306 [11 Cal. Rptr. 2d 2, 834 P.2d 696].) This type of comparative negligence has been referred to as ” ‘secondary assumption of risk.’ ” (Id. at p. 308.) Assumption of risk that is based upon the absence of a defendant’s duty of care is called ” ‘primary assumption of risk.’ ” (Ibid.) “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.” (Id. at p. 309.)

Primary assumption [***12] of risk, “‘”where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”‘” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense. That defense was not fully developed until our Supreme Court decided Knight v. Jewett. There, Knight sued Jewett for negligence and assault and battery after she was injured when Jewett knocked her over and stepped on her finger during a touch football game. In affirming summary judgment for the defendant, the court held that under the doctrine of primary assumption of risk, the defendant did not owe the plaintiff a duty. It “conclude[d] that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.) [*1260]

(3) Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question. (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) [***13] [HN4] “In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the [**830] activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at pp. 314-315.) Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” (id. at p. 315), and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule” (id. at p. 319). The focus of the questions should consider the nature of the activity and the relationship of the parties to the activity. (Id. at p. 315.)

There are situations other than active sports where under the doctrine of primary assumption of risk a plaintiff is held to agree to relieve a defendant of an obligation of reasonable conduct toward him or her. For example, Knight stated, “In addition to the sports [***14] setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter’s rule.’ [Citation.] In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.] Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.” (Knight v. Jewett, supra, 3 Cal.4th at pp. 309-310, fn. 5.)

Other examples of primary assumption of risk are the so-called veterinarian’s rule (e.g., Priebe v. Nelson (2006) 39 Cal.4th 1112, 1121, fn. 1 [47 Cal. Rptr. 3d 553, 140 P.3d 848]) [***15] or where the plaintiff is hired to undertake a particular, dangerous job (e.g., Farnam v. State of California (2000) 84 Cal.App.4th 1448, 1455 [101 Cal. Rptr. 2d 642]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [53 Cal. Rptr. 2d 713]). But for purposes of this case, we need only consider whether Carl’s injuries occurred while he was engaged in an “active sport,” which relieved defendants of a duty of care. [*1261]

There are more than 100 published cases defining what is and what is not an “active sport” qualifying for application of the doctrine of primary assumption of risk. “Since the decision in Knight, which involved a recreational game of touch football, our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford[ v. Gouin (1992)] 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724], the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, nonteam sporting activity of waterskiing. The Supreme Court has applied the doctrine to other sports, including intercollegiate baseball (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [**831] [41 Cal. Rptr. 3d 299, 131 P.3d 383]), swimming (Kahn[ v. East Side Union High School Dist. (2003)] 31 Cal.4th [990,] 1004-1005 [4 Cal. Rptr. 3d 103, 75 P.3d 30] [***16] [examining coach’s relationship to sport]), and snow skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068 [68 Cal. Rptr. 2d 859, 946 P.2d 817] …). [Citation.] The Courts of Appeal have applied the primary assumption of the risk rule in cases involving snow skiing (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]), ‘off-roading’ with a motorcycle or ‘dune buggy’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1255, 1259-1265 [102 Cal. Rptr. 2d 813]), skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-117 [96 Cal. Rptr. 2d 394]), figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1636 [53 Cal. Rptr. 2d 657]), and long-distance group bicycle riding (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1218-1223 [130 Cal. Rptr. 2d 198]), to name a few.” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 878-879 [67 Cal. Rptr. 3d 675] [primary assumption of risk applied to bar action for injury to passenger on jet ski].)

In Record v. Reason (1999) 73 Cal.App.4th 472 [86 Cal. Rptr. 2d 547], the court held that where the plaintiff was injured when he fell off an inner tube while being towed behind a motor boat, primary assumption of risk applied. In doing so, the court considered the issue of whether a particular activity was a “sport” such that the doctrine should be applied. [***17] After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Id. at p. 482.) Although we agree with the result in Record its reliance on a plaintiff’s subjective reasons for participating in a sport seems inconsistent with Knight‘s test, which focuses on whether imposing liability would “alter fundamentally the nature of the sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.) [*1262]

(4) Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1205 [14 Cal. Rptr. 2d 670] applied primary assumption of risk to sailing where the plaintiff was one of the crew operating the boat; the court noted that sailing involves swinging booms and physical participation of crew. But in our case, plaintiff was not a participant in the “sport” of boating or in any “active sport.” He was a passenger. Thus [HN5] this activity does not fall within [***18] the test set out in Knight, i.e., that to hold defendants owed no duty to plaintiffs would “alter fundamentally the nature of [a] sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.)

This case is more analogous to Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217]. There a six-year-old child and her siblings sued the owner and operator of a ski boat for negligence arising from injuries sustained by the child when she fell from the boat into the boat’s propeller. The Court of Appeal reversed summary judgment, holding that primary assumption of risk did not apply. The court noted, “Our analysis begins by examining with what activity the Knight court was concerned. In Knight, the court came to the commonsense conclusion that when two people are playing a sport together one should not be liable to the other for injuries sustained while playing that sport [**832] absent some recklessness or intentional misconduct. [Citation.] The parties in Knight were engaged in a recreational game of football, clearly a physical activity and ‘sport’ within any common understanding of the word.” (Id. at p. 796.) Shannon held that the defense did not apply where [***19] the plaintiff was merely a passenger in the ski boat. (Id. at p. 801.)

Shannon distinguished Ford v. Gouin, supra, 3 Cal.4th 339, the waterskiing case, by noting that in Ford, our Supreme Court “explicitly used the language ‘noncompetitive but active sports activity’ in applying the doctrine to waterskiing. [Citation.] A review of the reasoning set forth in Ford makes clear that the court focused on the physical skill and risk involved in the waterskiing itself to conclude that the activity of waterskiing was a sport, and the boat driver a coparticipant in that sport. [Citation.] The same certainly cannot be said of a mere passenger in a boat … .” (Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 798.)

(5) Here, the trial court characterized the activity in which plaintiff engaged as “jumping” rather than boating. We disagree that [HN6] we must surgically separate an activity’s constituent parts apart from the general activity in which the plaintiff was engaged. Carl was engaged in boating, not in jumping. If he had been a jumper, in the sense of one who competes in athletic events, our conclusion would be different. But he was disembarking from the boat; his method of doing so, be it leaping, jumping, stepping off, or walking the gangplank, [***20] did not turn his activity into an “active sport.” [*1263]

We therefore conclude that the doctrine of primary assumption of risk does not bar plaintiffs’ action.

Defendants’ Remaining Arguments

(6) We need not expend a great deal of time dealing with the rest of defendants’ arguments. Although these were not the basis for the grant of summary judgment, we will comment briefly. Defendants contend they acted with reasonable care. But this argument should be made not to us but to the trier of facts. [HN7] Whether reasonable care has been exercised is normally a question of fact. (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 656 [320 P.2d 500].) Even if defendants were not responsible for the removal of the steps, and they contend the steps were there, this would only be one possible theory of liability. And, in light of the conflicting evidence, it is not for us to decide whether the steps were removed and, if so, by whom.

(7) As to defendants’ argument that Carl’s wife, Barbara, did not sustain damages to support her loss of consortium claim, the contention rests on the absence of evidence of physical injuries. But, as plaintiffs point out, “[a]lthough [HN8] loss of consortium may have physical consequences, it is principally a form [***21] of mental suffering.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 401 [115 Cal. Rptr. 765, 525 P.2d 669].)

(8) Defendants’ final argument is equally specious. [HN9] Whether or not Carl’s son, Michael, had such a contemporaneous sensory awareness of the accident as to satisfy the requirements of Thing v. La Chusa (1989) 48 Cal.3d 644, 668-669 [257 Cal. Rptr. 865, 771 P.2d 814] is again a question of fact, not to be resolved by us.

DISPOSITION

The judgment is reversed. Appellants shall recover their costs.

Sills, P. J., concurred.

DISSENT BY: BEDSWORTH

DISSENT

BEDSWORTH, J., Dissenting.–“No good deed goes unpunished” has become a truism of modern life. Today, [**833] by allowing suit against a yacht club that tried to help one of the sons of a member in his time of grief, only to be sued when he hurt himself intruding into their conduct of the good deed, my colleagues give this sad commentary on modern society the force of law. I respectfully dissent from that.

Carl Kindrich III was injured when he jumped off a boat and onto a dock. He did so voluntarily, after he knew his adult son, Michael, had already [*1264] gotten onto the dock to assist in tying off the boat. There is absolutely no evidence that anyone suggested, let alone required, that Kindrich himself must get off the boat prior [***22] to the time the stairs were put into place on the dock for the egress of passengers. Nonetheless, Kindrich, along with his wife and son, sued both the Long Beach Yacht Club and Charles Fuller, the Yacht Club member who captained the boat, alleging they were responsible for his injuries.

The trial court granted summary judgment to defendants, and I would affirm that judgment. I believe the trial court properly concluded that Kindrich’s specific act of “jumping onto the dock,” rather than the more generic and sedate “boating” was the relevant “activity” for purposes of assessing his assumption of risk. In my view, jumping or stepping some two and one-half or three feet off the side of a boat onto a dock–merely because portable steps had not yet been put into place–is no more an integral part of “boating” than diving out a window–because no one has yet opened the door–is an integral part of visiting a house.

This was not an outing or an excursion. It was not a leisurely sail. The trip was made to dispose of the ashes of Kindrich’s father. The injury in question was not the result of “boating.” Kindrich was not swept off the boat by a wave or hit by a jib. He jumped off the [***23] boat at the conclusion of the trip before the boat had been tied up. His injury was the result of his sudden decision he would leap off the boat rather than waiting for his son to finish tying it off and ensuring debarkation could be safely accomplished.

It is undisputed that defendants did not expect, let alone require, that passengers would have to jump off this particular boat as part of the “boating” experience. To my mind, the existence of portable stairs, which had been used by these passengers when boarding the boat, and were intended to be kept on the dock for the passengers to use in both getting on and off the boat, rather conclusively establishes the lack of any such expectation. And Kindrich’s own testimony demonstrates that even he did not consider jumping off the side of the boat onto the dock to be a normal part of this boat ride, let alone an integral part of the activity of “boating” in general. As Kindrich explained it, he not only did not expect that anyone else on the boat would be jumping off, he believed them unable to do it. 1

1 As Kindrich explained in his deposition, “Jim, my brother, has a back to where he can’t do a lot of jumping; Mary Ann would not be capable [***24] of doing it; Lisa wouldn’t be capable of doing it; my grandsons would not be capable of doing it. And the other two gentlemen would not be capable of doing it.”

Moreover, there is no evidence that anyone–either Fuller or the Yacht Club–imposed some special obligation on Kindrich to jump off the boat and [*1265] be on the dock while it was being tied up. Instead, Kindrich’s own testimony establishes that (1) Fuller merely stated (either directly to Kindrich or generally to him and his son) that it was necessary to tie up the boat, and “someone else” would have to assist; (2) Kindrich’s son immediately volunteered to do that; and (3) Kindrich was aware his son [**834] had already jumped onto the dock for the purpose of tying off lines before his own ill-fated attempt to follow suit. Even assuming it was actually necessary for “someone” to be on the dock–a fact disputed below–it is uncontested that need had been met prior to Kindrich’s jump.

Under these facts, it is clear that jumping off the boat before the stairs were in place was not a requirement placed generally on those who were passengers on the boat, and it was not a requirement placed specifically on Kindrich by any defendant. 2 Hence, [***25] Kindrich’s decision to do so was simply an optional, and entirely voluntary act, which must be distinguished, for analytical purposes, from any normal aspect of “boating.”

2 Of course, I do not mean to suggest Kindrich necessarily thought through these events with the specificity I have just employed. Presumably, he just figured if Fuller needed help getting the boat tied onto the dock, he was willing to do whatever he could to assist. But that instinct is the essence of volunteerism: “Somebody ought to do it, might as well be me” is not the same thing as being specifically assigned a task. And the fact Fuller might even have appreciated having two people on the dock is not the same thing as concluding he actually directed Kindrich to get onto the dock–by whatever means possible–as soon as the boat arrived. Based upon the evidence in this case, the trial court correctly determined Kindrich was acting voluntarily when he jumped off the boat.

As my colleagues seem to concede, when Kindrich’s activity is construed not as an integral part of “boating” but rather as simply an impetuous act of “jumping off the boat,” it falls within the scope of “athletic” endeavors, which includes those [***26] noncompetitive activities requiring some level of “physical skill and risk,” and thus primary assumption of the risk would apply. (See Ford v. Gouin (1992) 3 Cal.4th 339, 345 [11 Cal. Rptr. 2d 30, 834 P.2d 724]; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 798 [112 Cal. Rptr. 2d 217].) Because I see it that way, I would apply that doctrine, and grant the summary judgment.

But I should also note that I disagree with the majority’s analysis for an additional reason. As they explain, they considered Kindrich’s situation to be more analogous to Shannon v. Rhodes, supra, 92 Cal.App.4th 792, in which the injured plaintiff, a six-year-old child, was merely a passenger when she fell out of a boat that lurched unexpectedly, than to Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670], in which the court applied primary assumption of the risk to a plaintiff who was injured while serving as a crewmember on a sailboat. If that is the analysis, it would lead me to the opposite conclusion. After all, a cornerstone of Kindrich’s theory of liability [*1266] is the assertion he had agreed to help with the docking of the boat, which is why–unlike the other passengers–he could not simply wait for the stairs to be put in place before getting onto the dock. If we accept [***27] his view, it seems clear that at the time of the accident, Kindrich had assumed the role of “crew,” rather than remaining a mere passenger. That would bring him within the majority’s characterization of Stimson. For that reason as well, I would affirm the judgment.

My colleagues have expanded civil liability beyond previous decisional law and beyond my ability to sign on. This ship will have to sail without me.

Respondents’ petition for review by the Supreme Court was denied February 11, 2009, S168902. Werdegar, J., did not participate therein.


Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota

Court in its ruling referred to the language on the lift ticket as additional proof that plaintiff had knowledge of the risk.

Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047

State: Minnesota, Court of Appeals of Minnesota

Plaintiff: Donya L. Dawson

Defendant: Afton Alps Recreation Area

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of Risk

Year: 2014

Holding: for the Defendant

The plaintiff went tubing at the defendant’s property. She failed to stop and collided with a fence at the end of the run. She had been tubing before in the past couple of years. She purchased a ticket to tube but did not read the disclaimer language on the back of the ticket before she affixed it to her jacket.

The language on the lift ticket was quite extensive and outlined the risks of tubing.

The plaintiff could see the fence which was behind a snow barrier when she was standing at the top of the tubing run. The plaintiff tubed for about 1.5 hours when she linked her tube with her boyfriends. At the end of the run the plaintiff “flipped out of her tube” hitting the fence injuring her leg.

The plaintiff sued, and the trial court granted the defendant’s motion for summary judgment stating the plaintiff’s claims were barred by the doctrine of primary assumption of the risk.

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

Primary assumption of the risk is a complete bar to a recovery by a plaintiff. Under Minnesota law, primary assumption of the risk is defined as:

Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .

In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.

The court also stated that in Minnesota for a person to assume the risk, they must:

The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.”

The knowledge required when knowing the risk is actual knowledge of the risk. That means the plaintiff could not be held to know the risk of tubing and hitting the fence if she had not seen the fence. Actual knowledge that there was a fence at the end of the run is required, not just the knowledge that you can be hurt tubing.

The court then broke down the requirements and discussed each component of the steps necessary to prove assumption of the risk. The first is, was there a duty of care owed by the defendant to the plaintiff. Under Minnesota law, a person operating a place of amusement owes a duty to make the amusement reasonable safe.

(holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.

The court found that the plaintiff had the opportunity to discover the risks of tubing, knew about those risks thus she accepted the risks of tubing.

Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.

Next the court looked at whether the plaintiff had knowledge and appreciated of the risk. Knowledge must be “Actual knowledge of a sport’s risks may be inferred from experience in the sport.”

The plaintiff argued she did not know she could be hurt hitting the fence.

The court basically did not buy it. The plaintiff knew she could be injured if she hit other objects or other tubers. The plaintiff knew the hill was icy that night and knew she was unable to control the tube as it went down the hill. The plaintiff knew the activity was not safe and wore a ticket that stated it was not safe.

The court concluded that if the plaintiff wanted to avoid the risks, she could have not gone tubing that evening.

So Now What?

I found this statement in the decision to be quite interesting. “Snowtubing is a sport, like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” This might be interesting and provide help either direction in a skiing case in Minnesota.

Assumption of the risk is the second defense available to most outdoor recreation providers. However, proving assumption of the risk is difficult. Here it was a lot easier because the plaintiff had gone tubing before and had been tubing for an hour and half the nigh to the incident as well as saw the risk before encountering it.

Keep track of who visits your operation. Repeat visitors may tell you of the dozens of times they have stopped by in the past and then on the stand say it was a first time for them. Assumption of the risk is hard to prove without prior experience, videos or proof the persons assumed the risk in writing.

What do you think? Leave a comment.

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Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047

Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047

Donya L. Dawson, Appellant, vs. Afton Alps Recreation Area, Respondent.

A14-0194

COURT OF APPEALS OF MINNESOTA

2014 Minn. App. Unpub. LEXIS 1047

September 22, 2014, Filed

NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

SUBSEQUENT HISTORY: Review denied by Dawson v. Afton Alps Rec. Area, 2014 Minn. LEXIS 685 (Minn., Dec. 16, 2014)

PRIOR HISTORY: [*1] Washington County District Court File No. 82-CV-13-224.

DISPOSITION: Affirmed.

CORE TERMS: snowtubing, fence, ticket, colliding, tube, barrier, pillow, well-known, incidental, snowtuber, skiing, sport, summary judgment, review denied, collision, snowtubed, speed, record supports, actual knowledge, genuine, icy, snowboarding, snowtube, descent, jacket, tubing, linked, user, hit, matter of law

COUNSEL: For Appellant: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota.

For Respondent: Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota.

JUDGES: Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Willis, Judge*.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

OPINION BY: WILLIS

OPINION

UNPUBLISHED OPINION

WILLIS, Judge

Appellant sustained injuries from colliding with a fence while snowtubing and brought a negligence action against the owner and operator of the snowtubing business. The district court entered summary judgment in favor of the owner, concluding that the doctrine of primary assumption of the risk barred appellant’s claim. We affirm.

FACTS

In January 2012, appellant Donya Dawson went snowtubing at respondent Afton Alps Recreation Area with a group of friends. Dawson, who was 41 years old, had snowtubed at least once in the preceding two years. A friend of Dawson’s signed a release in order to get Dawson’s ticket; Dawson affixed the ticket to her jacket. The ticket contained the following language:

The [*2] purchaser or user of this ticket agrees and understands that skiing, snowboarding, and tubing can be hazardous. Trail conditions vary constantly because of weather changes and individual use. Ice, variations in terrain, moguls, forest growth, rocks and debris, lift towers and other obstacles and hazards, including other skiers, snowboarders and tubers may exist throughout the area. Be aware that snowmaking and snowgrooming may be in progress at any time. Always stay in control.

In using the ticket and skiing, snowboarding or tubing at the area, such dangers are recognized and accepted whether they are marked or unmarked. Ski, snowboard and tube on slopes of your ability and read trail maps.

The user realizes that falls and collisions do occur and injuries may result and therefore assumes the burdens of skiing, snowboarding and tubing under control at all times.

. . . .

The user of this ticket assumes all risk of personal injury or loss or damage to property.

While Dawson did not read the fine print of the ticket, she testified that she had read similar language on a ticket when she snowtubed previously.

Standing at the top of the hill, Dawson saw that there was a fence directly behind a [*3] pillow barrier at the foot of the hill. The pillow barrier was composed of several large, foam-filled pads that were tied together with thick rope and that in turn were tied to the fence. Dawson testified that the conditions on the hill were icy and that she had no control over the speed or direction of travel of her tube during the descent. On her first run, Dawson snowtubed down the hill with five of her friends. All six linked their tubes together. When Dawson reached the bottom of the hill, she “flipped upside down” as she hit the pillow barrier. An Afton Alps employee told her that the facility allowed only two snowtubers to go down the hill together because linking tubes increases the speed of descent. Dawson testified that she continued to snowtube down the hill linked with a friend’s tube, and she hit the pillow barrier “very hard” each time. After snowtubing for approximately an hour and a half, Dawson and her boyfriend snowtubed down the hill with their tubes linked together. At the end of the run, Dawson flipped off her tube and her body hit the fence, injuring her left leg.

Dawson asserts that her bodily injury was directly and proximately caused by Afton Alps’s negligence. [*4] The district court granted Afton Alps’s motion for summary judgment, concluding that Dawson’s claims were barred by the doctrine of primary assumption of the risk. This appeal follows.

DECISION

“On appeal from summary judgment, we must review the record to determine whether there is any genuine issue of material fact and whether the district court erred in its application of the law.” Dahlin v. Kroening, 796 N.W.2d 503, 504-05 (Minn. 2011). “[T]he applicability of primary assumption of the risk may be decided by the court as a matter of law when reasonable people can draw only one conclusion from undisputed facts. . . . [A]n appellate court reviews that decision de novo.” Grady v. Green Acres, Inc., 826 N.W.2d 547, 549-50 (Minn. App. 2013) (alterations in original).

Primary assumption of the risk acts as a complete bar to a plaintiff’s recovery. Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn. 1979). Minnesota courts have applied primary assumption of the risk to cases involving participants in inherently dangerous sporting activities. See Wagner v. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986) (rollerskating); see also Grisim v TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn. 1987) (golf); Moe v. Steenberg, 275 Minn. 448, 450-51, 147 N.W.2d 587, 589 (1966) (ice skating); Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn. App. 2007) (skiing), review denied (Minn. Aug. 21, 2007); Schneider ex rel. Schneider v. Erickson, 654 N.W.2d 144, 152 (Minn. App. 2002) (paintball); Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 746-47 (Minn. App. 2000) (diving), review denied (Minn. Oct. 17, 2000); Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn. App. 1996), (snowmobile racing), review denied (Minn. Jan. 29, 1997); Swagger v. City of Crystal, 379 N.W.2d 183, 184-85 (Minn. App. 1985) (softball), review denied (Minn. Feb. 19, 1986). In Grady, this court recently held that primary assumption of [*5] the risk applies to adult snowtubers because it is an inherently dangerous sport. 826 N.W.2d at 552.

Here, the doctrine of primary assumption of the risk relates to Afton Alps’s legal duty to protect Dawson, a snowtuber, from the risk of harm.

Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .

In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.

Id. at 550.

“The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.” Id. at 551 (citing Peterson, 733 N.W.2d at 792). “Application of the doctrine requires actual, rather than constructive, knowledge.” Snilsberg, 614 N.W.2d at 746.

A. Duty of Care

“The first step in determining whether primary [*6] assumption of the risk applies is to determine whether the defendant owed a duty to the plaintiff.” Grady, 826 N.W.2d at 550. Afton Alps acknowledges that it owed Dawson the duty of reasonable care. See Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59 (Minn. App. 1989) (holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.” Snilsberg, 614 N.W.2d at 744.

Dawson argues that Afton Alps breached its duty because it failed to warn her that she could be injured by colliding with the fence, and Afton Alps should have either removed or properly cushioned the fence. But Dawson offers no evidence other than her own argument that such measures would have lessened the inherent risks associated with snowtubing. See Grady, 826 N.W.2d at 550 (dismissing appellant’s assertion that respondent was negligent in reducing risk of collision with another snowtuber when it failed to provide numerous safety measures on the course).

A well-known, incidental risk of snowtubing is the possibility of colliding with a fixed object. Snowtubing is a sport, [*7] like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” Id. Even if Afton Alps had a duty to warn, it met that duty when it informed Dawson of the risk of possibly colliding into a fixed object, such as the fence. Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.”

B. Knowledge and appreciation of the risk

Actual knowledge of a sport’s risks may be inferred from experience in the sport. Grady, 826 N.W.2d at 551; see also Snilsberg, 614 N.W.2d at 746 (concluding that appellant’s actual knowledge of the danger of diving into the lake from the dock was established by her general knowledge as an experienced swimmer and diver and specific knowledge of the shallow water at the dock).

Dawson argues that she did not have actual knowledge that she could suffer severe harm from colliding with the fence while snowtubing. But the record supports the district court’s determination that Dawson had such actual knowledge. Dawson testified that she had general knowledge [*8] of snowtubing because she had done it at least once before. Dawson also had specific knowledge that she could collide with the fence while snowtubing–she saw that the fence was located directly behind the pillow barrier at the foot of the hill. Dawson knew of the icy conditions on the hill that evening and that she was unable to control her tube as it went down the hill. An Afton Alps employee told Dawson after her first run that linking tubes increases the speed of descent. Despite her knowledge of these risks, she continued to snowtube down the hill.

The record also supports the district court’s conclusion that Dawson appreciated the risk of being injured by colliding with the fence. Dawson wore a ticket on her jacket stating that she acknowledged that “obstacles and hazards . . . may exist throughout the area” and “collisions do occur and injuries may result,” and that she “recognized and accepted those dangers” and “assume[d] all risk of personal injury.”

Although Dawson insisted that she was unaware that she could be injured by colliding with the fence, she testified that it was possible that she could collide with other persons or objects while snowtubing and that snowtubing is a sport [*9] that cannot be made completely safe. The record supports the district court’s conclusion that Dawson knew and appreciated the risk of a collision with the fence.

The district court also properly concluded that Dawson had a chance to avoid the risk. See Grady, 826 N.W.2d at 552 (concluding appellant had the chance to avoid the risk of colliding with another snowtuber by not going down the hill). Dawson could have avoided the risk by not snowtubing that evening. The district court noted that when Dawson stood at the top of the hill, “she could see and appreciate the conditions then existing” and that she “was aware from her previous trips down the hill that the hill was icy and that she would in all likelihood run into the [pillow barrier], and possibly the fence, at the end of her run.” The record supports the district court’s conclusion.

C. Expert testimony

Dawson argues that primary assumption of the risk is inapplicable here because her liability expert testified that the fence was not a well-known risk incidental to snowtubing. But colliding with a fixed object is a well-known risk of snowtubing, and here the fence was an obvious fixed object. No genuine issue for trial exists when “the record taken as a [*10] whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). No genuine issue of fact exists here because the evidence is conclusive, and there is no fact issue for a jury to decide. See Snilsberg, 614 N.W.2d at 744 (holding that applicability of primary assumption of the risk is “[g]enerally a question for the jury” but that it “may be decided as a matter of law” when the evidence is conclusive).

The record supports the district court’s determination that Dawson’s injuries resulted from the inherent risks of snowtubing, and it did not err by granting Afton Alps’s motion for summary judgment.

Affirmed.


The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win

Plaintiff signed up on a cruise ship to hike on a lava field. She was fully informed of the risks and admitted to knowing the risks in advance which is defined as assumption of the risk.

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

State: California and Hawaii, the accident occurred in Hawaii but the lawsuit was filed in California

Plaintiff: Ana Maria Andia, M.D.

Defendant: Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures

Plaintiff Claims: (1) negligence, on grounds that Defendant breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Defendant failed to warn Plaintiff of the known dangers and risks associated with the lava hike. & (1) negligence, on grounds that defendant cruise breached its duty of care to Plaintiff by failing to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that defendant cruise failed to warn Plaintiff of the dangers and risks associated with the lava hike.

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2007

Simple case, however, the facts are long because the defendants provided the plaintiff with a ton of information about the risks of the activity which the court reviewed.

The plaintiff signed up for a hike in the lava fields in Hawaii while on a cruise ship. The information about the hike stated the distance of the hike was always changing because of the lava flow. The hikers could return at any time; however, if they did they would return the way they came by themselves.

This information was provided to the plaintiff in a description of the hike provided by the defendant cruise line, in a brochure that plaintiff was given, in a release the plaintiff signed, and during a talk before the hike began.

Plaintiff in her deposition also admitted that she was an experienced hiker, that falling was always a possibility when hiking.

During a point in the hike, the plaintiff decided to turn around. While hiking back to the ranger station she fell breaking her foot. She sued for her injuries.

The lawsuit was started in the Federal District Court of Southern California. The defendant travel company was dismissed earlier in the case. The defendant hiking company cruise line filed motions for summit judgment.

Summary of the case

The court first looked at the claims against the defendant hiking business. (The type of entity or whether it was an entity was never identified, and the court was not sure what the hiking company was also.)

The basis of the motion from the hiking company was that the risk of “…slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking.”

The duty of care owed by the defendant hiking company in this situation is:

…a duty to use due care and avoid injury to others, and may be held liable if they’re careless conduct injures another person. The doctrine of primary assumption of the risk is an exception to this general rule. The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity; the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”

The court then found the doctrine of primary assumption of the risk applied because:

…conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”

Summing up its own analyses of primary assumption of risk the court stated:

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity.

The plaintiff argued that the hiking company, Arnott’s, was guilty of gross negligence because:

Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day of her cruise vacation.

However, the plaintiff’s arguments were not backed up with any facts. Arguing a point with facts that do not support your argument fails.  

The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Nor did the actions of the defendant hiking company increase the risk of injury to the plaintiff.

The plaintiff knew the risks of hiking prior to the hike in question and admitted that in her deposition. The plaintiff was given information about the hike and had the risks of the hike explained to her four different ways prior to the hike. The plaintiff assumed the risk of here injuries, and the risk that plaintiff suffered causing her injury were visible to anyone hiking in the lava field.

The next issue the court reviewed with regard to the defendant hiking company was the duty to warn. “It is established law, at least in the exercise of ordinary care, that one is under no duty to warn an-other of a danger equally obvious to both.”

The court found for the hiking company on this issue based on the facts and found the plaintiff assumed the risk of her injuries because she could see the risk and continued on anyway. If you can see the risk, you cannot complain about not knowing about the risk.

The plaintiff’s claims against the cruise ship were then reviewed. A cruise ship has a different duty of care owed to its passengers. “The duty of care of the owner of an excursion ship is a matter of federal maritime law. That duty is to exercise reasonable care under the circumstances.”

Here the plaintiff presented no evidence that the defendant cruise line did not exercise reasonable care to the plaintiff. The same facts when applied to the case also showed the defendant cruise ship had not breached its duty to warn to the plaintiff. The information and brochure were provided by the cruise ship to the plaintiff when she signed up for the hike.

[I]t is generally accepted that where a carrier.  . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.”

So Now What?

The case was won on two issues. The first was the risks of the activity were pointed out over and over again by the hiking company to the plaintiff. Information, brochures, safety talks all stated the risks of the activity which the plaintiff accepted when she turned around.

The second issue was the plaintiff in her deposition admitted to hiking experience. Possibly one or the other could have been enough to prove a defense for the defendants in this case; however, since both were so clear, the defense was easily proven.

Many times on hikes, we point out risk, as well as birds and beauty, to others with us. If you are guiding a hike, this requirement should concentrate your attention to these issues and your actions in pointing out risks. You can cover many of the risks of an activity such as hiking with a general talk at the beginning. “We are going to be walking on uneven surfaces. There will be many rocks and roots to trip on. Pay attention to where you are putting your feet and make sure you are on a solid surface when walking.”

As much as releases are an important defense and source of information for your guests, assumption of the risk is making a comeback in the outdoor recreation industry. If your release fails for any reason, assumption of the risk is the best and maybe the only other defense you have available.

Besides the more your gusts know and understand the risks of the activity the less likely the will be to be injured and the better the experience they will have. Leave scaring guests to fun houses at Halloween.

The one confusing issue in the case was the courts use of California law to decide a case that occurred in Hawaii. The federal courts are for situations like this when the parties are from different states. The plaintiff was from California, and the defendants were from Hawaii. However, without an agreement as to the law that should be applied to the case, Hawaiian law, I believe should be applied. Here the court used California law.

What do you think? Leave a comment.

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Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Ana Maria Andia, M.D., Plaintiff, vs. Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures, a Hawaiian business of unknown structure, Defendants.

CASE NO. 06cv0437 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 88247

November 29, 2007, Decided

November 29, 2007, Filed

CORE TERMS: hike, lava, station, terrain, falling, rock, summary judgment, hiking, slipping, uneven, duty of care, assumption of risk, cruise, inherent risk, trail, ship, warn, surface, viewing, passenger, excursion, admits, hiker, duty to warn, failure to warn, negating, minutes, causes of action, totally outside, gross negligence

COUNSEL: [*1] For Ana Maria Andia, an individual, Plaintiff: Harold M Hewell, LEAD ATTORNEY, Hewell Law Firm APC, San Diego, CA; Howard M Rubinstein, LEAD ATTORNEY, Law Offices of Howard Rubinstein, Aspen, CO.

For Celebrity Cruises Inc, a foreign corporation, Arnotts Lodge and Hike Adventures, a Hawaiian business of unknown structure Defendants: Gregory Dean Hagen, Tammara N Tukloff, LEAD ATTORNEYS, Drath Clifford Murphy and Hagen, San Diego, CA.

JUDGES: WILLIAM Q. HAYES, United States District Judge.

OPINION BY: WILLIAM Q. HAYES

OPINION

ORDER

HAYES, Judge:

The matter before the Court is Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures. (Doc. # 40).

Background

Defendant Celebrity Cruises, Inc. (“Celebrity”) is engaged in the business of providing passenger cruises to various destinations. 1 UMF 1. Arnott’s Lodge and Hike Adventures (“Arnott’s”) guides transport cruise ship passengers to Volcanoes National Park (“the Park”), and provide knowledge about where the lava flow is each day. UMF 3. In order to view the active lava flow, individuals must hike over cooled lava. This terrain is rugged and natural, consisting of uneven surfaces. Id. at 4; DMF 4. The Hawaii Volcanoes [*2] National Park Rangers (“Rangers”) place reflective markers and cones on the lava to be used by hikers as reference points. UMF 7.

1 The parties each submitted a statement of facts with their submissions in support of and in opposition to the Motion for Summary Judgment. The Court relies upon the facts from Defendants’ Alleged Undisputed Material Facts (“UMF”), which are undisputed by Plaintiff and supported by the cited evidence, and the facts from Plaintiff s Disputed Material Facts (“DMF”), which are undisputed by Defendants and supported by the cited evidence.

In November, 2005, Plaintiff Ana Maria Andia, M.D. was a passenger on Defendant Celebrity Cruises, Inc.’s (“Celebrity”) passenger cruise ship. Plaintiff is an experienced hiker. Andia Depo, 35: 23-25. On November 27, 2005, Plaintiff signed up to participate in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike, guided by Arnott’s. UMF 8. On November 27, 2005, there was total visibility for many miles in every direction. Id. at 5.

Prior to beginning the hike, Plaintiff read the description of the hike that states: “This tour involves approximately two to six miles of hiking over very sharp and uneven surfaces.” [*3] Id. at 10. Plaintiff also read, understood and executed the “Lava Hike Participant, Release and Acknowledgment of Risk” (“Agreement”), which provides, in relevant part:

I agree not to hold Arnott’s liable for any accident or injury beyond its control. The hike to the Lava is conducted at a brisk pace and requires physically fit participants in good health who can readily hike on varied surfaces and elevation changes for extended periods. I, as a participant, acknowledge that I am taking this activity of my own free will and that I will not hold Arnott’s responsible for any injury incurred while . . . I am hiking on the paved or natural surfaces of the National Park. . . . I understand by reading this waiver that Arnott’s guides will provide only broad direction and safety guidelines and that I remain responsible for the actual path hiked and whether I choose to take the risks with possibly still hot Lava Flows.

Id. at 11. Plaintiff also received and read a document entitled “Arnotts Adventures proudly presents: The Kilauea Lava Hike Adventure” (“Brochure”), which informed Plaintiff that she may need to turn around and head back to the Rangers station alone, and that she did not need [*4] a trail to return safely. Id. at 14.

Prior to beginning the hike, Arnott’s informed Plaintiff that the lava flow had changed and that the hike was going to be longer than anticipated for that day. Id. at 13. Arnott’s also informed all participants in the hike, including Plaintiff, that they had the option of staying at the Rangers station and not going on the hike, and that there would be four decision points during the hike at which hikers could turn around and head back to the Rangers station. Id. at 13, 18.

Prior to beginning the hike, Plaintiff understood that the marked trail was merely a preferred route, and that the trail was not necessary to safely return to the Rangers station. UMF 15; Andia Depo, 63:1-15. Plaintiff also understood that guides would not stay with her during the hike and that she might be returning to the Rangers station unaccompanied. UMF 15, 16; Andia Depo, 63: 1-15, 64:22-24. Plaintiff understood that the hike would be difficult and strenuous. Andia Depo, 52: 17-19

For the first 30 minutes of the hike, and through the first two decision points, the hike proceeded on paved surfaces. UMF 20. During this period, Plaintiff recalls seeing reflective tabs on the [*5] paved surface. Id. Plaintiff’s companion recalls seeing reflective tabs stuck to the rocks for 10-15 minutes of the hike after leaving the paved road. Plaintiff does not recall whether or not the reflective tabs were stuck to the rocks. Id. at 21. Approximately 45 minutes into the hike, and after approximately 15 minutes of walking on unpaved terrain, Plaintiff decided to return, unaccompanied by a guide, to the Rangers station. Id. at 22. About 15 minutes into her return, Plaintiff slipped on one of the rocks. When Plaintiff slipped, she twisted her ankle. Plaintiff then lifted her foot up, and hit the top of her foot on the lava rock. As a result of these events, Plaintiff fractured her foot. Id. at 23. Plaintiff testified that she then proceeded back to the Rangers station. Andia Depo, 86:22-87:14. The fall itself could have caused the fracture to become displaced and surgery may have been required regardless of whether Plaintiff attempted to walk out of the lava fields. UMF 25. Plaintiff was given the option of going to the ship’s doctor or the Hilo emergency room for treatment, and Plaintiff elected to receive treatment with the ship’s doctor. Id. at 24; Andia Depo, 89:15-25; [*6] 90:1-10. Plaintiff testified that, as a result of the fracture, she was confined to a wheel chair for a period of months, had to take time off of work, and suffers impaired balance. Id. 15:13-14.

On February 24, 2006, Plaintiff filed the First Amendment Complaint (“FAC”) against Defendants Full Service Travel, 2 Celebrity and Arnott’s. (Doc. # 3). The FAC alleges causes of action against Arnott’s for (1) negligence, on grounds that Arnott’s breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Arnott’s failed to warn Plaintiff of the known dangers and risks associated with the lava hike. The FAC alleges causes of action against Celebrity for (1) negligence, on grounds that Celebrity breached its duty of care to Plaintiff by failing to to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that Celebrity failed to warn Plaintiff of the dangers and risks associated with the lava hike.

2 On October 5, 2006, Defendant Full Service Travel was dismissed from the case, with prejudice.

On August 18, 2007, Defendants filed the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. [*7] Defendants claim they are entitled to judgment as a matter of law because (1) Arnott’s owed Plaintiff no duty to protect Plaintiff against the assumed risk of slipping and falling on the lava rock, (2) Arnott’s owed Plaintiff no duty to warn Plaintiff of the obvious risk of injury of slipping and falling on the lava rock, (3) Celebrity did not owe Plaintiff a duty to warn of the obvious risk of slipping and falling on lava rock, (4) the alleged negligence of Defendants did not cause Plaintiff’s injuries, and (5) the claim for punitive damages against Arnott’s is not warranted. After receiving evidence and briefing from the parties, the Court heard oral argument on November 9, 2007.

Standard of Review

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material [*8] fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

Choice of Law

The Court has jurisdiction over this action through diversity of citizenship, 28 U.S.C. section 1331. Federal courts exercising diversity jurisdiction must [*9] apply the substantive law of the state in which they are located, except on matters governed by the United States Constitution or federal statutes, or on procedural issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Complaint alleges causes of action in negligence for breach of due care and for failure to warn. The elements of the tort of negligence are essentially identical under California and Hawaii law. See White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (USDC Haw. 2006); Ladd v. County of San Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309, 911 P.2d 496 (1996). Furthermore, the doctrine of primary assumption of risk is a measure of a defendant’s duty of care, and is essentially identical under both Hawaii and California law. Yoneda v. Andrew Tom, 110 Haw. 367, 379, 133 P.3d 796 (2006); Knight v. Jewett, 3 Cal. 4th 296, 314-15, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992).

Discussion

I. Plaintiff’s Claims Against Arnott’s

Arnott’s contends that the risk of slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking. Arnott’s contends that without this risk, the means of viewing this natural phenomenon would be severely limited to the general public. Arnott’s also contends that the evidence is uncontroverted that [*10] Arnott’s provided Plaintiff with written disclosures concerning the condition of the terrain, that guides would only give broad direction on the actual hike, that Plaintiff may need to turn around and head to the Rangers station alone, and that Plaintiff did not need a trail to return safely. Arnott’s contends that there is no triable issue of fact as to whether Arnott’s is liable for breach of its duty of care because the doctrine of primary assumption of risk applies, negating any duty of Arnott’s to protect Plaintiff against the inherent risk of slipping and falling while lava hiking. Arnott’s contends that Plaintiff has failed to assert facts or introduce any evidence that demonstrates that the conduct of Arnott’s was totally outside the range of ordinary activity or that the conduct of Arnott’s increased Plaintiff’s risk of slipping and falling on the lava rock. Arnott’s also contends that there is no triable issue of fact as to whether Arnott’s is liable to Plaintiff for breach of the duty of Arnott’s to warn because the risk of slipping and falling on the natural terrain was equally obvious to Plaintiff and Arnott’s.

Plaintiff responds that the conduct of Arnott’s constituted [*11] gross negligence for the following reasons: Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn Plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure Plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring Plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided Plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day [*12] of her cruise vacation. 3

3 Plaintiff does not dispute that the doctrine of primary assumption of risk applies, negating Arnott’s’ duty to prevent Plaintiff from slipping and falling on lava rock. Instead, Plaintiff relies solely on her contention that the Agreement itself is either an unenforceable exculpatory agreement or an unenforceable contract of adhesion. Defendants, however, do “not contend, nor have they even asserted, that the [Agreement] relieves them from liability for any alleged negligence, nor gross negligence.” Reply, p. 1-2.

A. Duty of Care

As a general rule, persons have a duty to use due care and avoid injury to others, and may be held liable if their careless conduct injures another person. Cal. Civ. Code § 1714. The doctrine of primary assumption of the risk is an exception to this general rule. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 315. Whether the doctrine of assumption of risk applies, thereby negating a duty of care, turns on [*13] the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Id. at 309. In reviewing the nature of the activity, the doctrine of primary assumption of risk applies where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. Id. at 315. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995).

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity. Saville v. Sierra College, 133 Cal. App. 4th 857, 866, 36 Cal. Rptr. 3d 515 (4th Dist. 2005); Kane v. National Ski Patrol, 88 Cal. App. 4th 204, 209, 105 Cal. Rptr. 2d 600 (4th Dist. 2001). The relationship between an instructor and student is instructive [*14] on the issue of whether the Arnott’s guides engaged in reckless conduct or increased the inherent risk involved in lava hiking. Kane, for example, involved candidates for a voluntary ski patrol who participated in a skills clinic instructed by Larry Stone, a National Ski Patrol System (“NSPS”) instructor. 88 Cal. App. 4th at 207. Stone led the clinic participants to the most difficult terrain at the resort. When the participants were reluctant to proceed through a portion of the trail, which was icy and spotted with trees, rocks and stumps, Stone asked the clinic participants what they would do “if there was a skier over the side?” Id. at 208. Although both plaintiffs felt uncomfortable with continuing down the terrain, they carried on, following Stone’s direction. Id. One plaintiff ultimately caught an “edge” with his ski, causing him to fall to his death, and the other plaintiff fell and suffered a broken leg. Id. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of risk applied, negating the defendant’s duty of care. The court reasoned that “an instructor’s assessment errors – either in making the necessarily subjective [*15] judgment of skill level or the equally subjective judgment about the difficulty of the conditions – are in no way ‘outside the range of the ordinary activity involved in the sport.” Id. at 214.

Plaintiff admits that she is an experienced hiker. Andia Depo, 35:23-25. Plaintiff admits that falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain. Id. at 153:8-14. Plaintiff admits that prior to starting the hike she was aware that she would be hiking over “very sharp and uneven surfaces.” Id. at 51:8-13. Plaintiff does not introduce any evidence to refute that hiking across uneven and challenging natural terrain is an inherent risk of hiking to active lava flow, without which the general public would be substantially deprived of viewing this natural phenomenon. The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent Plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Plaintiff admits that, prior to the hike, Arnott’s provided the following written disclosures, which she understood: that the natural terrain was uneven and challenging; that [*16] during the hike she would be responsible for the path she traveled; that the guides would give only broad direction; that she may have to return to the Rangers station alone; and that the trail was merely a preferred route, and not necessary to safely get back to the Rangers station. Despite these disclosures, Plaintiff asserts that the decision to allow Plaintiff to return to the Rangers station alone and subsequent conduct on the part of the Arnott’s guides constituted gross negligence. The Court finds that the decision to allow Plaintiff to return alone and subsequent conduct on the part of Arnott’s guides at most constituted “assessment errors,” but these “subjective judgment[s] about the difficulty of the condition[s],” were “in no way so reckless as to be totally outside the range of the ordinary activity involved” in the activity of lava hiking. See Kane, 88 Cal. App. 4th at 214. Plaintiff emphasizes that Arnott’s’ conduct, such as permitting her to participate in the hike wearing sneakers instead of hiking boots, was grossly negligent. However, the Court finds that there is no evidence in the record to support Plaintiff’s conclusion that Arnott’s conduct, including permitting [*17] Plaintiff to wear improper footwear, hike over thin lava crust, return to the Rangers station alone and without sufficient water, or return to the ship instead of going to the Hilo emergency room, increased the risk of Plaintiff’s injury. The Court concludes that there is no triable issue of fact as to whether Arnott’s conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of lava hiking.

The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for breach of duty of care.

B. Duty to Warn

“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Marshall v. United Airlines, 35 Cal. App. 3d 84, 90, 110 Cal. Rptr. 416 (1973).

Plaintiff admits she is an experienced hiker, that she was aware that falling is always a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover during the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the possibility that Plaintiff would [*18] have to return to the Rangers station alone and nature of the terrain. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer any evidence to demonstrate that the risk of slipping and falling on lava rock was any less obvious to Plaintiff than it was to Arnott’s. The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for failure to warn.

II. Plaintiff’s Claims Against Celebrity

Celebrity contends that although Plaintiff alleges separate causes of action in negligence for breach of due care and for failure to warn, both of these claims allege only failure to warn. Celebrity contends that it had no duty to warn Plaintiff of the risk of slipping and falling on lava rock during a hike through a lava field because the risk was patently obvious and equally apparent to Plaintiff and Celebrity.

Plaintiff’s Response in Opposition to the Motion for Summary Judgment on all of Plaintiff’s claims against Celebrity states in full:

[P]laintiff relied on Celebrity to provide her with reasonably safe shore excursions. The dangers of the lava hike with Arnott’s were not readily apparent to her or anyone else who had not [*19] taken the hike. Celebrity’s reliance on Deroche is misplaced.

This was not a scooter ride, which a reasonable person knows poses obvious dangers. It was a hike to a uniquely dangerous place. [Plaintiff] reasonably relied on Celebrity to exercise due care in providing her with a safe guide service, and in offering a potentially life-threatening venture. Celebrity had a duty to ensure that Arnott’ s was a reasonable safe and reliable service. Celebrity is liable for breach of that duty.

Opposition, p. 19-20.

A. Duty of Care

The duty of care of the owner of an excursion ship is a matter of federal maritime law. DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. App. 4th 802, 807, 46 Cal. Rptr. 2d 468 (1994). “That duty is to exercise reasonable care under the circumstances.” Id. at 807-8.

Plaintiff fails to introduce any evidence to support her claim that Celebrity did not exercise due care when it enrolled Plaintiff in “excursion HL 15, the Kilauea Lava Viewing Hike, an unreasonably dangerous and poorly run and operated excursion.” See FAC, P 35-36. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed introduce any evidence demonstrating Celebrity breached its duty [*20] of due care to Plaintiff. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for breach of duty of care.

B. Duty to Warn

“[I]t is generally accepted that where a carrier . . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” DeRoche, 31 Cal. App. 4th at 809. However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.” Id. at 810.

As previously discussed, Plaintiff admits she is an experienced hiker, that she was aware that falling is a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover for the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the challenging nature of the terrain and the possibility that Plaintiff would have to return to the Rangers station alone. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed offer any evidence that demonstrates the risk of falling [*21] on lava rock was any less obvious to her than it was to Celebrity. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for failure to warn.

Conclusion

Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures (Doc. # 40) is GRANTED. The Court directs the Clerk of the Court to enter JUDGMENT for Defendants and against Plaintiff.

DATED: November 29, 2007

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge


Morgan et al., v. Ohio Conference of the United Church of Christ et al., 2012-Ohio-453; 2012 Ohio App. LEXIS 385

Brian Morgan et al., Plaintiffs-Appellants, v. Ohio Conference of the United Church of Christ et al., Defendants-Appellees.

No. 11AP-405

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2012-Ohio-453; 2012 Ohio App. LEXIS 385

February 7, 2012, Rendered

PRIOR HISTORY: [**1]

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CVC-03-4516).

DISPOSITION: Judgment affirmed.

COUNSEL: Rourke & Blumenthal, LLP, Kenneth S. Blumenthal and Jonathan R. Stoudt; Cloppert, Latanick, Sauter & Washburn, and Robert L. Washburn, for appellants.

Philipp & Gregory, Ronald D. Gregory and Jeffrey T. Peters, for appellees.

JUDGES: DORRIAN, J. KLATT and SADLER, JJ., concur.

OPINION BY: DORRIAN

OPINION

(ACCELERATED CALENDAR)

DECISION

DORRIAN, J.

[*P1] Plaintiffs-appellants, Brian Morgan (“Morgan”) and his wife Amie Morgan (collectively “appellants”), appeal from the April 4, 2011 judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, Ohio Conference of the United Church of Christ (“OCUCC”) and Templed Hills Camp and Conference Center (“Templed Hills”) (collectively “appellees”). For the following reasons, we affirm.

[*P2] On November 12, 13, and 14, 2007, Morgan was scheduled to attend the Nature’s Classroom program at Templed Hills as a teacher chaperone for sixth grade students of Worthington City Schools. The school district contracted with the owner of the site, OCUCC, to send the students. The contract set forth a fee of $7,565 for the group’s participation. (Affidavit of Mark Glassbrenner, [**2] ¶4; Exhibit A-A to Affidavit.) On the evening of November 13, Morgan volunteered to act as a chaperone on one of the group’s night hikes. Morgan had chaperoned students annually from approximately 2002 to 2007 and attended the night hike every year. The night hike had originally been scheduled for the evening of November 12, but was postponed to the second evening due to rain. (Affidavit of Kristi Patrick, ¶6; Affidavit of Kathy Mikkelson, ¶6.)

[*P3] The night hike was led by Matthew Marsh (“Marsh”), a Nature’s Classroom instructor. Marsh testified that the purpose of the night hike was to use your other senses when your eyes were not as heightened as during the daylight. Marsh picked the trail and had been using that same trail for the night hikes he had been leading twice a week for the last seven months. It was an established trail and wider than shoulder length. Other trails on the property were harder to traverse. Marsh stated that the evening was a clear night, not cloudy, and the moon was out so the trail could be seen. The adults were also told to bring flashlights.

[*P4] The group met at approximately 7:30 p.m. and started with a game called “Bat & Moth,” where one child is blindfolded [**3] and the children attempt to escape. It is similar to the game Marco Polo. The game lasted approximately 20 to 25 minutes, after which the group entered the woods. After several minutes of hiking, they had to cross a creek bed, but it was a receding creek so there was not much water in it. Marsh stood in the middle of the creek bed on a rock with his flashlight and helped every child cross by holding their hand, and then he helped Morgan cross. While Marsh was counting the kids on the other side of the creek, he saw Morgan shift his weight and fall on his stomach. Marsh tried to call his supervisor on his radio and his cell phone but could not reach her. Then he called 911. When the EMTs arrived, Marsh took the students to an area away from Morgan.

[*P5] Morgan testified to a slightly different version of facts. He had never been on that particular trail and thought it was very overgrown. He was not advised to take a flashlight on the hike and remembered the night being cloudy. Morgan testified that as he approached the creek Marsh was there to help him cross and had a flashlight. Morgan did not remember specifically, but thinks he used Marsh’s shoulder to step on a tree stump or rock as [**4] he took a long stride to cross the creek. After a few seconds, Marsh gave some directions for the next activity and Morgan took a step with his right foot, lost traction and fell. He knew immediately that he was seriously injured. Morgan suffered severe injuries to his left arm and shoulder. Morgan testified he had to ask Marsh to call 911 several times before Marsh called them.

[*P6] Morgan and his wife filed a complaint against OCUCC and Templed Hills as the owners and operators of the site and the employers of Marsh for damages Morgan suffered resulting from Marsh’s negligence, as well as for Amie Morgan’s loss of consortium. A stipulation of dismissal pursuant to Civ.R. 41 was filed.

[*P7] The claim was refiled on March 22, 2010. Appellees filed a motion for summary judgment, contending that appellants’ claims were barred by the affirmative defense of primary assumption of the risk and by the Ohio recreational user statute, R.C. 1533.181. Appellees argued that Morgan assumed the risk of his injury by voluntarily participating in the night hike and that, under the circumstances, appellees owed no duty to protect Morgan from injury. Appellees also argued that Ohio’s recreational statute, R.C. 1533.181, [**5] barred his claims because Morgan was a recreational user and, as such, appellees owed no duty to Morgan as a hiker pursuant to the statute.

[*P8] In opposition to appellees’ motion, Morgan argued that the doctrine of primary assumption of the risk does not bar his cause of action, as the dangers presented by Marsh’s negligence were not inherent to hiking. Also, Morgan argued that the recreational user statute was inapplicable to these facts because the negligence alleged was based on the negligence of an employee, not a theory of premises liability. Additionally, Morgan claimed he was not a recreational user because he was a business invitee.

[*P9] By decision and entry filed April 4, 2011, the trial court granted appellees’ motion for summary judgment finding that the doctrine of primary assumption of the risk barred appellants’ claims. The doctrine removed any duty on appellees’ part to protect Morgan from risks inherent to the activity of night hiking.

[*P10] Appellants assert one assignment of error on appeal:

The trial court erred in granting the motion for summary judgment filed by the Appellees Ohio Conference United Church of Christ and Templed Hills holding that the doctrine of primary assumption [**6] of the risk bars Plaintiffs from recovering on their claims for negligence and loss of consortium.

[*P11] In their assignment of error, appellants challenge the granting of the motion for summary judgment, contending that the doctrine of primary assumption of the risk is inapplicable to these facts. [HN1] By asserting a negligence action, appellants were required to prove by a preponderance of the evidence that appellees owed them a duty of care, that the duty was breached and that the breach proximately caused Morgan’s injuries. Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 1992 Ohio 42, 597 N.E.2d 504 (1992).

[*P12] [HN2] The doctrine of primary assumption of the risk has often been applied to cases involving sporting events and recreational activities. Crace v. Kent State Univ., 185 Ohio App. 3d 534, 2009 Ohio 6898, ¶12, 924 N.E.2d 906, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008 Ohio 1421, ¶8, 2008 WL 802722, citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 6 Ohio B. 170, 451 N.E.2d 780 (1983). Whether to [**7] apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶12, citing Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 435, 1996 Ohio 320, 659 N.E.2d 1232 (1996). We therefore review the trial court’s decision de novo. Crace at ¶12, citing Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St. 3d 521, 523, 1996 Ohio 298, 668 N.E.2d 889 (1996), citing Indus. Energy Consumers of Ohio Power Co. v. Pub. Utils. Comm., 68 Ohio St. 3d 559, 563, 1994 Ohio 435, 629 N.E.2d 423 (1994).

[*P13] [HN3] Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries. Crace at ¶13, citing Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006 Ohio 3656, ¶12, 857 N.E.2d 1255. The doctrine is based on the fiction that the plaintiff has “tacitly consented” to the risk of injury inherent in the activity. Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). The rationale behind the doctrine is that certain risks are so intrinsic in some activities that the risk of injury [**8] is unavoidable. Crace at ¶13, citing Collier. The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶12.

[*P14] [HN4] The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages. Crace at ¶15, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 144, 2004 Ohio 379, 802 N.E.2d 1116, citing Prosser & Keeton, Law of Torts (5th Ed.1984) 496, Section 68; see also Gallagher at 431, citing Prosser & Keeton, 496-97, Section 28 (“Primary assumption of risk ‘is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action.'”). Primary assumption of the risk serves to negate the duty of care owed by the defendant to the plaintiff. Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010 Ohio 1390, ¶18, 2010 WL 254597. “Because a successful [**9] primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.” Id. at ¶21, citing Gallagher at 431-32.

[*P15] [HN5] With the doctrine of primary assumption of the risk, the injured plaintiff’s subjective consent to and appreciation for the inherent risks of the recreational activity are immaterial to the analysis. Crace, 185 Ohio App. 3d 534, ¶16, citing Gentry at 144. The types of risks inherent to an activity are those risks that are foreseeable and customary risks of the sport or recreational activity. Deutsch v. Birk, 189 Ohio App. 3d 129, 2010 Ohio 3564, ¶12 (937 N.E.2d 638, 12th Dist.), citing Thompson v. McNeill, 53 Ohio St.3d 102, 104-106, 559 N.E.2d 705 (1990). In accordance with these principles, this court held in Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527, 1997 WL 324175 (June 12, 1997), that “primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.” 1997 Ohio App. LEXIS 2527, [WL] at *4. [**10] “The law simply deems certain risks as accepted by the plaintiff regardless of actual knowledge or consent.” Crace at ¶16. The focus in primary assumption of the risk is on the defendant’s conduct, whether such conduct was reckless or intentional. Gentry at ¶9.

[*P16] In the instant case, the trial court noted that hiking is a recreational activity to which the doctrine applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night. (Apr. 4, 2011 Decision, 2.) Appellants argue that primary assumption of the risk does not apply to these facts because the risks which led to the injury in this case could have been eliminated if Marsh had chosen a different trail. However, this is essentially a claim that Marsh’s conduct was reckless. In Marchetti v. Kalish, 53 Ohio St.3d 95, 100, 559 N.E.2d 699 (1990), fn. 3, the Supreme Court of Ohio cited the comments f and g to Section 500 of the Restatement of Torts 2d, 590, which defined the three mental states of tortious conduct, as follows:

f. Intentional misconduct and recklessness contrasted. [HN6] Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act [**11] to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.

g. Negligence and recklessness contrasted. [HN7] Reckless mis-conduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with [**12] knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

[*P17] Appellants argue that Marsh should have chosen a different path for the hikers that evening. However, appellants did not allege that Marsh was reckless in choosing that path. The trial court specifically found that [HN8] hiking, especially night hiking, involves the risk of tripping, slipping and falling. Hiking does involve these risks. Morgan volunteered to participate in the night hike and assumed these risks. The court in Shaner v. Smoot, 7th Dist. No. 712, 2001 Ohio 3429, 2001 WL 1243920, found that persons involved in recreational activities assume the ordinary risks of the activity and the failure to warn of the ordinary risks does not subject one to