Putting a saddle on a horse does not turn a livery into a saddle manufacturer. Release stops negligence claims and law stops product liability claims.

A woman who fell off a horse while on a horseback ride. She sued for negligence, which the release stopped, product liability which the law stopped and willful and wanton conduct, which will proceed to trial.

Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

State: Colorado; United States District Court for the District of Colorado

Plaintiff: Alva Messer

Defendant: Hi Country Stables Corporation

Plaintiff Claims: negligence; product liability; and, willful and wanton conduct

Defendant Defenses: Release

Holding: Mostly for defendant, however plaintiff could continue on willful and wanton claims

Year: 2013

Summary

A woman purchased a trail ride from the defendant. On the ride, her saddle slipped, and she fell off the horse. She sued for negligence which the release stopped, product’s liability, which failed because the stable is not a manufacturer and willful and wanton conduct. The court allowed the willful and wanton claim to proceed.

Facts

On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County Stables. Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). HCS is one of two equestrian companies owned by Rex Walker. The other equestrian company is Sombrero Ranches, Inc. (“SRI”). Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI.

At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009.

Typically, when customers arrive at HCS, they are informed that they must sign a Release. Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.”

When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. She also requested that they indicate their riding ability, which Plaintiff did. Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.”

After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey.

Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey.

At the midway point, the Messer group stopped to take a rest break. Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right.

Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident.

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

The first issue was the fact the release that was signed did not name the proper defendant. Two stables were owned by the same person, each with different names. Each had a release that named it as the entity being protected. Somehow, a pad of the wrong releases ended up at the defendant, and the release signed by the plaintiff had the name of a different stable on it then where she was riding.

To make changes in a contract like this is called reformation. The court can reform a contract if the party’s intention when signing the contract is the same, and the language does not express the correct intention of the parties.

Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.”

A mutual mistake must have occurred for a reformation to be effective.

An “essential prerequisite to a court’s power to reform a contract on the ground of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.”

Because it was obvious that the plaintiff intended to go on a horseback ride with the defendant, where she signed the release, where she paid her money and where she took the ride, the court had no problems correcting the mutual mistake and placing the correct language in the release. This meant placing the name of the defendant in the position of the person to be protected by the release.

Accordingly, the Court finds that there was a mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.

The next issue was the validity of the release itself. Under Colorado law, there is a four-part test that a release must pass to be valid.

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.

The first three parts of the test the court quickly covered. Prior Colorado Supreme Court cases held that a recreational activity owes no duty to the public; horseback riding is not an essential service that would bar the release under part two of the test and there was no evidence the release was entered into unfairly.

The fourth test the court also found was valid with this release.

With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”

It was obvious that the intent of the parties was to decide in advance who would pay for the injuries of any patron of the ride. The release in this case repeatedly used the word negligence throughout the document so the plaintiff knew the purpose of the release. The release also pointed out specific risks of horseback riding that the signor could suffer.

The release was valid to stop the negligence claims.

The next issue was the product liability claim. The plaintiff argued that since the defendant had placed the saddle in the stream of commerce, by placing it on the horse, it was liable for any injuries caused by the defectiveness of the saddle.

The defendant argued that the release stopped this claim also. However, the law in Colorado is that a release cannot stop a product liability claim.

That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.”

The court found the product liability claim was not barred by the release. However, the court did hold that just placing a saddle on a horse for a trail ride does not create a product liability claim for defective equipment in Colorado. Horseback riding is a service; it is not a manufacturing process. Placing a saddle on the horse does not change that. The horse-riding service could not exist (for 99.9% of the people) without the saddle.

Plaintiff entered into a contract for a guided five-hour horseback ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service). Without a product, the product liability claims cannot succeed.

The saddle was not an item manufactured by the defendant; it was incidental to the service being offered by the defendant and so the product liability claim failed. Finally, the defendant was not a manufacturer of saddles.

The final issues were the claims for willful and wanton conduct. A release cannot bar claims that are greater than negligence, willful and wanton conduct or gross negligence.

Willful and wanton conduct claims are mental state claims. Meaning the claim goes to the actions, the mental state of the defendant in ignoring or creating the issue. This require conscious thought, not simple failure. “…willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.”

The court then allowed the plaintiffs claims based on willful and wanton conduct of the defendant to proceed to trial.

So Now What?

First, there is a need to look at the product liability claim. Not in the fact that most recreation businesses are manufacturing items, but because they are repairing them. Although you can find outfitter made items such as old raft frames, most items used now days are manufactured by a third party. However, many outfitters and recreation businesses do repair items.

Repairing an item may bring the outfitter into the trial under a product liability claim in many states. The outfitter by making repairs has entered into the stream of commerce between the manufacturer and the end user. The outfitter is no longer a user of the product, but a manufacturer of the product.

Remember there are some items you should never repair or that may be illegal to repair.

PFD’s cannot be repaired by law. Climbing harnesses or any other item where the failure would result in catastrophic injury or death or where the manufacturing process is protected by statute or standard should never be repaired.

The reformation issue was stupid. The cost of printing one set of releases on tan paper and the other on white would have eliminated this problem. Other examples would be putting the page numbers on the bottom right of one release and the center or top of the other. Locating the logo of the defendant in a different location on each release would have worked. Anything to that any employee can recognize that they are using the wrong release.

Some day there will be a horseback riding case that does not involve a slipping saddle. Why there still are, is a mystery to me, and I grew up with horses.

What do you think? Leave a comment.

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Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

United States District Court for the District of Colorado

January 8, 2013, Decided; January 8, 2013, Filed

Civil Action No. 11-cv-01500-WJM-MJW

Reporter

2013 U.S. Dist. LEXIS 2675 *; 2013 WL 93183

ALVA MESSER, Plaintiff, v. HI COUNTRY STABLES CORPORATION, Defendant.

Prior History: Messer v. Hi Country Stables Corp., 2012 U.S. Dist. LEXIS 170499 (D. Colo., Nov. 30, 2012)

Counsel:  [*1] For Alva Messer, Plaintiff: Donald L. Salem, Feldmann Nagel, LLC-Denver, Denver, CO.

For Hi Country Stables Corporation, Defendant, Counter Claimant: Kenneth H. Lyman, Malcolm S. Mead, Hall & Evans, LLC-Denver, Denver, CO.

For Alva Messer, Counter Defendant: Donald L. Salem, Michael G. Bryan, Feldmann Nagel, LLC-Denver, Denver, CO.

Judges: William J. Martinez, United States District Judge.

Opinion by: William J. Martinez

Opinion

AMENDED ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant’s Motion for Summary Judgment. (ECF. No. 41.) Plaintiff Alva Messer (“Plaintiff”) has filed a Response to this Motion (ECF No. 42.) and Defendant Hi Country Stables Corporation (“HCS” or “Defendant”) has filed a Reply. (ECF No. 45.) The Motion is ripe for adjudication.

Having reviewed the briefs and the relevant portions of the record, the Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND1

A. Factual Background

On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County  [*2] Stables. (ECF No. 41 at 3.) Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). (ECF No. 41 at 7.) HCS is one of two equestrian companies owned by Rex Walker. (Id.) The other equestrian company is Sombrero Ranches, Inc. (“SRI”). (Id.) Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). (Id.) The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. (Id. at 4.) The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI. (Id.)

At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. (Id. at 5.) For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009. (Id. at 5; see also, Exh. C, Walker Dep. at 29:13 – 30:5.)

Typically, when customers  [*3] arrive at HCS, they are informed that they must sign a Release. (Id. at 6; Exh. D, Marshall Dep. at 29.) Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.” (Id.)

When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. (Id.) She also requested that they indicate their riding ability, which Plaintiff did. (Id.) Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. (Id.) The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.” (ECF No. 41, Exh. A.)

After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. (Id. at 8; see also, Exh B, Alva Messer Dep. at 35:16-24). The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey. (Id.)

Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey. (ECF No. 41,  [*4] Exh. B, Alva Messer Dep. at 49:1 – 50:1; Exh., Humphrey Dep. at 44:18-25; 45:7 – 46:1; 47:13-22; Exh. F, Donald Messer Dep. at 22:10-17).2

At the midway point, the Messer group stopped to take a rest break. (ECF No. 41, Exh. B, Alva Messer Dep. at 47:10-20). Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right. (ld. at 50:2-9)

Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) (ECF No. 42, Exh. E, Humphrey Dep. at 54:15- 55:10; Exh. F, Donald Messer Dep. at 27:1- 28:6.) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident. (ECF No.1 at ¶¶ 14 and 57.)

II. LEGAL STANDARDS

Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if 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.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if under  [*5] the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). With this approach of resolving factual ambiguities against the moving party, the Court, as it should, thus favors the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

III. ANALYSIS

Defendant’s instant Motion seeks reformation of the Release and moves for summary judgment as to the Plaintiff’s claims—including: negligence; product liability; and, wilful and wanton conduct. If granted, Defendant argues that the Release should bar the negligence and product liability claims. The Court will first address  [*6] this issue.

A. Effect of the Release on the Negligence and Product Liability Claims

1. Reformation

Defendant seeks to reform the Release to reflect the true intent of the parties by substituting the name HCS for SRI. (ECF No. 41 at 22.)

Reformation of a contract is an “equitable remedy, and the formulation of such remedy rests with the court’s discretion.” May v. Travelers Property Casualty Co. 2006 U.S. Dist. LEXIS 80849, 2006 WL 3218852 at *2-3 (D. Colo. 2006, November 6, 2006). “Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Maryland Cas. Co. v. Buckeye Gas Prod. Co., 797 P.2d 11, 13 (Colo. 1990).3 Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.” Segelke v. Kilmer, 145 Colo. 538, 360 P.2d 423, 426-27 (Colo. 1961).

An “essential prerequisite to a court’s power to reform a contract on the ground  [*7] of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.” Maryland Cas. Co., 797 P.2d at 13. Prior agreement must be found from the evidence presented, which must be “clear and unequivocal”, and appropriate under the “circumstances.” Id.
See also, Segelke 360 P.2d at 426-27.

Here, Defendant asserts that the intent of the Release was to bind Plaintiff Alva Messer and Defendant HCS. Defendant contends that reference to SRI on the Release was a mutual mistake and that SRI should be substituted with HCS. The Court agrees. This holding is supported by Plaintiff Messer’s own testimony, which clearly reflects the parties’ common understanding of the signed document and shows acknowledgment by Plaintiff that the Release was, in fact, releasing HCS – not SRI. Such testimony is found in the following passage:

Q. You were told it was a release, correct?

A. Correct.

Q. And did you have any conception or understanding of what that meant?

A. Well, I assume a release is to release the people, you know, the stables.

Q. And when you were presented this at Hi Country Stables, was it your understanding  [*8] that you were releasing Hi Country [Stables]?

A. Correct.

(Messer Deposition at 32:3-22).

Because the above testimony is clear and unequivocal, the Court finds that it reflects the parties’ true intentions of the Release that the contract was between Plaintiff Messer and Defendant HCS.

Additionally, Plaintiff signed the Release at a location owned by HCS immediately before embarking on a trail ride guided by HCS employees. (ECF No. 41, Exh A.) Given that Plaintiff signed the document at HCS, it is difficult to see how the Release was intended to apply to any entity other than HCS.

Accordingly, the Court finds that there was mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.

2. Application of Release to Plaintiff’s Negligence Claim

As the Court has found that the Release should be reformed, the next issue is whether the Release shields Defendant from Plaintiff’s negligence claim. For the  [*9] reasons below, the Court concludes that it does.

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).4

As to the first factor, Colorado law is clear that businesses engaged in recreational services do not perform services that implicate  [*10] a public duty. This favors Defendant’s position as to the validity of the Release. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).

With respect to the second factor, the Court similarly finds for Defendant because horse-back riding is “not an essential service.” Hamill v. Cheley Colorado Camps, 262 P.3d 945, 949-50 (Colo. App. 2011) Horse-back riding is one of choice, not necessity.

As to third factor, this also cuts in favor of Defendant since there is no evidence to suggest that the Release was entered into unfairly. Instead, Plaintiff signed the Release “in consideration for the opportunity” to ride the trail led by HCS wranglers. (ECF No. 41, Exh A.) Plaintiff also indicated her riding ability. This suggests that she had ample time to review the Release and become familiar with its conditions. It is these facts, amongst others, that rebut any notion that the Release was unfair. Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474-475 (D. Colo. 1992).

With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether  [*11] this intent was clearly and unambiguously expressed.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989). Here, the test is met since the Release specifically uses the word “negligence” throughout the document. Reference to the word negligence expressly indicated that HCS would not be liable for such claims. Also, like the release in Jones, the Release in this case similarly points to the “specific risks” of property and personal injury damage that may “arise out of negligence.” Jones, 623 P.2d at 376. Such language serves to reinforce the intent of the Release and thatPlaintiff agreed to “assume such risks” during the course of the HCS led trail-ride. (ECF No. 41, Exh. A.)

In sum, the Court concludes that the Release shields Defendant from Plaintiff’s negligence claim. To the extent that Defendant’s Motion is directed towards that claim, the Motion for Summary Judgment is granted.5

3. Application of the Release to Plaintiff’s Strict Product Liability Claims

In addressing whether the Release applies to Plaintiff’s product liability claims, the Court finds this result is controlled by existing case law: Boles v. Sun Ergoline, 223 P.3d 724, 727-728 (Colo. 2010). That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.” Id. (emphasis added). The Court holds that this passage has equal application here. As distinct from the negligence claim, Boles provides that the Release does not shield Defendant from the strict product liability claims.

Alternatively, Defendant argues that the broad language of the Release covers product liability claims.  [*13] Clause 2 provides: “that [the Customer] know[s] and understand[s] that horse riding . . . risks of . . . including the risk that [HCS]. . . may act negligently in . . . preparing or maintaining the horse . . . equipment or premises . . .” (ECF No. 41 Exh A.) Nothing in Clause 2 suggests that the Release covers claims which involve “leasing” or “manufacturing” saddles used in conjunction with Defendant’s trail rides, which would give rise to a products liability claim. Because exculpatory agreements are strictly construed against the party seeking exception, Defendant’s argument that the Release bars this claim must fail. Barker v. Colorado Region-Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. App., 1974.)6

Accordingly, Plaintiff’s product liability claims are not barred by the HCS Release.7

B. Merits of the Product Liability Claims

Defendant also moves for summary judgment on the merits of Plaintiff’s product liability claim. In these claims, Plaintiff alleges (1) that HCS leased a defective saddle to Plaintiff by placing it in the “stream of commerce” and (2) that HCS manufactured a defective saddle that was used by Plaintiff (ECF No. 41 at 35; ECF No. 25 at ¶ ¶ 36-55.)8 Defendant offers two alternative arguments below as to why grant of summary judgment is justified with respect to these claims. The Court will address each in turn.

1. Horse-Back Riding by HCS is a Service and Does Not Give Rise to Products Liability

Defendant contends that summary judgment should be granted on Plaintiff’s product liability claims because the primary purpose of the contract was the provision of a service—not a product. This, Defendant contends, does not give rise to liability in tort. (ECF No. 41 at 37.) See, Yarbro v. Hilton Hotels, 655 P.2d 822, 828 (Colo. 1982)

To buttress its position, Defendant relies on Kaplan v. C Lazy U Ranch, 615 F. Supp. 234 (D. Colo. 1985). There, Judge John L. Kane of this District Court refused to treat “a saddled horse, or a ride on a horse with a saddle” as a product. Id. at 238. Judge Kane held that it was incongruent with strict product liability doctrine and cited several cases that have refused to extend the concept of strict liability to “persons rendering services.”9
Id. at 238 n.3. Defendant asserts that Kaplan has equal application here.

Plaintiff seeks to distinguish Kaplan by making specific reference to “SADDLE EQUIPMENT” in the Complaint. (See ECF No. 25 at ¶ ¶ 36- 51.) Plaintiff seeks to separate the saddle from the horse, and attempt to succeed on that basis.

The Court finds Kaplan persuasive. Like that case, the Court holds that a saddle (on a horse) is not a product—particularly in the context of horse-back riding services. The Court further finds Plaintiff’s distinction is misplaced because it fails to appreciate that the saddle was incidental to the primary purpose of the contract. Plaintiff entered into a contract for a guided five-hour horse back ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service).10 Without a product, the product liability claims cannot succeed. Yarbro 655 P.2d at 828.

Because the saddle was only incidental to the contract for services, Plaintiff has failed to show a “trial  [*17] worthy” issue as to her product liability claims. Harper v. Mancos Sch. Dist. RE-6, 837 F.Supp.2d 1211, 1223-24 (D.Colo.2011).

2. Use of the Saddle Did Not Constitute a Lease

In the alternative, Defendant argues that summary judgment is warranted on Plaintiff’s product liability claims because it is not a “seller”of a product. That is, Defendant does not fall within the definition of “seller” under the statute because Defendant is not a “lessor” of products, nor a “manufacturer”. See generally, C.R.S. § 13-21-401; Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1018 (10th Cir. 2000).11 Again, the Court agrees.

Contrary to Plaintiff’s position, the Court finds that Defendant does not “lease” saddles to its customers. Plaintiff signed a Release “in consideration for the opportunity to ride” a horse through RMNP. (ECF No. 41, Exh A.) The “opportunity to ride” does not create a lease. Its use is too short. Nor does it constitute ownership of the saddle itself.

Moreover, HCS cannot be considered a manufacturer because it does not manufacture saddles. (ECF No. 41, Exh. G, Humphrey  [*18] Dep. at ¶11; Exh H, Walker Dep. at ¶ 8.) Plaintiff argues that the “offside billet [of the saddle] is a product and that it became defective while in the course of it distribution from the original manufacturer through Defendant to her as the consumer.” (ECF No. 42 at 34-35). The Court treats this as an admission that Defendant never manufactured the billet. It also supports the finding that no product is involved in the present case.

Plaintiff has failed to show a genuine issue of fact as to whether Defendant leased or manufactured a saddle. Thus, Defendant’s Motion as to both of the product liability claims is granted.

3. Plaintiff’s Argument re Blueflame Gas

Plaintiff argues that Defendant placed a defective saddle “in the course of the distribution process” and is, therefore, liable for product liability. (ECF No. 42 at 33. (emphasis added.)) In support, Plaintiff heavily relies on Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984). There, the defendant purchased propane from Diamond Shamrock. Defendant then transported and sold the propane directly to residential customers. A gas explosion occurred at a residential home. The plaintiff claimed, inter alia, strict liability  [*19] based Defendant’s failure to odorize the propane, making it a defective product. The Supreme Court held that a defective product must have arisen at the time of manufacture or “in the course of the distribution process” to the plaintiff. Id. at 590.

The Court is not compelled to find in Plaintiff’s favor based on Blueflame.12 The saddle in this case was not sold to Plaintiff. The saddle was not part of a distribution process. And, unlike the customers in Blueflame, the Court finds that Plaintiff is not permitted to pursue her product liability claim based on a “distribution process” theory.

Therefore, in addition to the reasons addressed above, Plaintiff’s reliance on Blueflame does not save her product liability claims from summary judgment.

C. Merits of the Wilful and Wanton Claim

Plaintiff’s claim for wilful and wanton conduct is trial worthy. First, a waiver cannot release wilful tortfeasors (alleged or otherwise). The Release has no bearing  [*20] on this claim. Barker v. Colorado Region Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. 1974).

Second, willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.” Brooks v. Timberline Tours, 127 F.3d 1273, 1276 (10th Cir. 1997). Because key facts going to this mental state are disputed, Defendant is not entitled to judgment as a matter of law. For example, Plaintiff contends that Humphrey did not perform the number of saddle “checks” he asserts. (Alva Messer Dep. at 43:4-44:18; 48:3-11; 48:21-49:17.) Plaintiff also disputes whether Humphery noticed the “saddle rolling to the right” during the trail ride. (Id.) These examples reflect material facts ripe for jury determination. If the jury credits Plaintiff’s testimony on these points, it could reasonably find that Defendant’s actions were wilful and wanton.

The Court finds that Plaintiff has shown a genuine dispute of material fact as to her wilful and wanton conduct claim. As to this claim, Defendant’s Motion for Summary Judgment is denied. See Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001).

III. CONCLUSION

Based on the foregoing, the Court hereby ORDERS as follows:

1. Defendant’s  [*21] Motion for Summary Judgment (ECF No. 41) is GRANTED IN PART and DENIED IN PART;

2. Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims for negligence and product liability;

3. The Clerk shall enter judgment in favor of Defendant on Plaintiff’s negligence and product liability claims;

4. Defendant’s Motion for Summary Judgment is DENIED as to Plaintiff’s wilful and wanton claim; and

5. Trial will proceed solely on Plaintiff’s willful and wanton claim, as previously scheduled, on March 11, 2013.

Dated this 8th day of January, 2013

BY THE COURT:

/s/ William J. Martinez

William J. Martinez

United States District Judge


Lawsuit because a ski helmet failed to protect a plaintiff from concussion.

Is this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?

Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233

State: Wisconsin: United States District Court for the Western District of Wisconsin

Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services

Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited

Plaintiff Claims: negligence, strict product liability, and breach of warranty

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2018

Summary

This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.

Facts

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

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

This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.

The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.

The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.

The court started by looking at the Wisconsin Product Liability statute.

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.

The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.

Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”

Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.

One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.

Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.

The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.

As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.

Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.

The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.

This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.

The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.

In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:

…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”

The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.

However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.

Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.

Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.

Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.

Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.

You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”

Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.

Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.

The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.

So Now What?

The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.

As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.

Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.

Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.

More articles about helmets

A helmet manufacture understands the issues (Uvex, Mouthguards)    http://rec-law.us/xpxX6n

A new idea that makes sense in helmets: the Bern Hard Hat    http://rec-law.us/yPerOd

Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike?    http://rec-law.us/1fqwlpV

Do you really want to sell helmets this way? Does this article promote the industry?    http://rec-law.us/NfoMTs

Does being safe make us stupid? Studies say yes.    http://rec-law.us/Ao5BBD

Great article on why helmet laws are stupid    http://rec-law.us/zeOaNH

Great editorial questioning why we need laws to “protect” us from ourselves.    http://rec-law.us/Ayswbo

Helmets do not increase risk of a neck injury when skiing    http://rec-law.us/wPOUiM

Helmets: why cycling, skiing, skateboarding helmets don’t work    http://rec-law.us/RVsgkV

Law requires helmets, injuries down fatalities up?    http://rec-law.us/YwLcea

Mixed emotions, but a lot of I told you so.    http://rec-law.us/ysnWY2

More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour    http://rec-law.us/z4CLkE

The helmet issue is so contentious people will say the stupidest things    http://rec-law.us/zhare9

What do you think? Leave a comment.

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helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed


Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

 Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

United States District Court for the Western District of Wisconsin

December 28, 2018, Decided; December 28, 2018, Filed

17-CV-534-JDP

Reporter

2018 U.S. Dist. LEIS 217233 *

STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.

Core Terms

helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed

Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.

For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.

For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.

For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.

For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.

Judges: JAMES D. PETERSON, [*2] District Judge.

Opinion by: JAMES D. PETERSON

Opinion

OPINION & ORDER

Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.

K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.

At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.

UNDISPUTED FACTS

The following facts are undisputed except where noted.

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.

Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.

ANALYSIS

K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.

A. Plaintiffs’ motion to exclude expert evidence

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).

1. P. David Halstead

P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.

First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:

• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.

• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.

• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.

• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.

The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.

Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.

Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.

Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.

Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:

Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.

Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.

Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:

“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”

Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.

The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.

2. Irving Scher, Ph.D., P.E

Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.

a. Helmet fit

Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:

• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.

• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.

• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.

These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.

Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.

Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.

b. Kinematics analysis

Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:

• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.

• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.

• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.

• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.

• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.

• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.

• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.

The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.

Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.

Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.

Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.

B. K2’s motion for summary judgment

Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.

1. Summary judgment standard

Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

2. Strict Product liability claim

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.

There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.

a. Defective design

Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.

i. Unreasonably dangerous defect

Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6

Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).

K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.

K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.

K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.

ii. Causation

K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.

Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.

K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:

Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.

Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.

b. Defective Instructions

Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.

Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.

K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.

The court denies K2’s motion for summary judgment on the defective instructions claim.

3. Negligence claim

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).

K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.

4. Breach of warranty claim

K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).

Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.

5. Loss of consortium claim

K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.

K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.

C. Additional motions and requests for relief

As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)

But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.

A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.

ORDER

IT IS ORDERED that:

1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.

2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.

3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.

4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.

Entered December 28, 2018.

BY THE COURT:

/s/ JAMES D. PETERSON

District Judge


Words and Phrases Defined in an Articles

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase

Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii 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
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.

Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

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

New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk
Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit

Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.

Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality

Inherently Dangerous Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Inherent Risks California 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).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?

Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

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

Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.

New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California
Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018


275 cases have been reviewed on Recreation-Law.com

That means more than 275 articles have been written looking at the legal issues of Outdoor Recreation for Outfitters, Guides, Manufacturers, College & University for credit and non-credit programs and many other

Here are the cases I’ve reviewed:

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527    http://rec-law.us/2hVLLhm

Albert v. Ober Gatlinburg, Inc., 2006 U.S. Dist. LEXIS 100150    http://rec-law.us/1hRlKFP

Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317    http://rec-law.us/1idHb4V

Allison v. Charter Rivers Hospital, Inc, 334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43    http://rec-law.us/1fpUgtf

Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261    http://rec-law.us/2b7Ik5b

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198    http://rec-law.us/2l0IwXz

Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634        http://rec-law.us/1ROrCW3

Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819    http://rec-law.us/1npYR0s

Anderson v Boyne USA, Inc., 2012 Mich. App. LEXIS 1725    http://rec-law.us/ICcr07

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542    http://rec-law.us/Hc9ZqD

Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832    http://rec-law.us/1mslAfq

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2    http://rec-law.us/12c3Ha1

Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396    http://rec-law.us/VK2ocE

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218    http://rec-law.us/18IFVV8

Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080    http://rec-law.us/1neytrW

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994    http://rec-law.us/1xvOs9u

Barnes & a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254    http://rec-law.us/2jSMvAl

Barnes v. Dungan et al., 261 A.D.2d 797; 690 N.Y.S.2d 338; 1999 N.Y. App. Div. LEXIS 5556    http://rec-law.us/1c6hxjp

Bastable v. Liberty Tree Mall Limited Partnership, 6 Mass. L. Rep. 217; 1996 Mass. Super. LEXIS 64    http://rec-law.us/2dmBqnE

Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)    http://rec-law.us/1aIBzyQ

Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)    http://rec-law.us/2uRbdd1

Becker v. Hoodoo Ski Bowl Developers, Inc., 269 Ore. App. 877; 346 P.3d 620; 2015 Ore. App. LEXIS 319    http://rec-law.us/1lHMjET

Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940    http://rec-law.us/1vgi4sa

Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312    http://rec-law.us/YBTceE

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212    http://rec-law.us/261enbO

Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90    http://rec-law.us/1nqJGny

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43    http://rec-law.us/GYdiUr

Bishop vs – Nelson Ledges Quarry Park, Limited, et al., 2005-Ohio-2656; 2005 Ohio App. LEXIS 2504    http://rec-law.us/2aTyYE2

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897    http://rec-law.us/1bpyPHR

Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6    http://rec-law.us/2rY5rlU

Boisson v. Arizona Board of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7    http://rec-law.us/2enLvnY

Bonne, et al., v. Premier Athletics, LLC, et al., 2006 U.S. Dist. LEXIS 77802    http://rec-law.us/HeFemi

Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992    http://rec-law.us/RaqgkN

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53    http://rec-law.us/1pi97g5

Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662    http://rec-law.us/2D24cYv

Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393    http://rec-law.us/1fzWlPL

Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204        http://rec-law.us/11KEUsP

Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141    http://rec-law.us/GYcpew

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638    http://rec-law.us/1s09gqA

Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226    http://rec-law.us/1eA9Uwn

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344    http://rec-law.us/11JYZdA

Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60    http://rec-law.us/1IuciVx

Camp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672    http://rec-law.us/Hb6hjG

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709    http://rec-law.us/1jWsf0S

Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251    http://rec-law.us/1bBuCex

Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366    http://rec-law.us/1cyVosh

Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)    http://rec-law.us/2sdIhMr

Choi and Keane v. Hunterdon County YMCA, Inc., et. al., 2017 N.J. Super. Unpub. LEXIS 2737    http://rec-law.us/2Af0j3S

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563    http://rec-law.us/1WEeFwT

Cole v. Boy Scouts of America, 2011 S.C. LEXIS 383    http://rec-law.us/GXvqum

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183    http://rec-law.us/2y9JMge

Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51    http://rec-law.us/2sNyfi8

Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160    http://rec-law.us/23ORxmL

Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481    http://rec-law.us/1jOJhZh

Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745 (W.D. Mich. 2002)    http://rec-law.us/173kQld

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919    http://rec-law.us/MWodNV

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386    http://rec-law.us/Xm7L53

Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608    http://rec-law.us/2qDmlWL

D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499    http://rec-law.us/1UrOYl3

Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423    http://rec-law.us/XjgsZB

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297    http://rec-law.us/1UYtPiD

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527    http://rec-law.us/1eA8RfR

Derienzo v. Trek Bicycle Corporation, 376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863    http://rec-law.us/1dwyqyE

DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235    http://rec-law.us/2gMwDAg

DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695    http://rec-law.us/2q7fJ5O

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584    http://rec-law.us/1Hp65Pn

Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559    http://rec-law.us/JsT2yI

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412    http://rec-law.us/2mGxOkY

Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807    http://rec-law.us/LwaCmb

Duncan, et al., v. Ryba Company, 1999 U.S. Dist. LEXIS 12424    http://rec-law.us/1hwbulZ

Elliott, v. Carter, 2016 Va. LEXIS 151    http://rec-law.us/2eNYr3F

Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39    http://rec-law.us/1WxAdLI

Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357    rec-law.us/1MSWIsZ

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603    http://rec-law.us/2iSOd75

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185    http://rec-law.us/1aOOz1H

Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242    http://rec-law.us/M6gByP

Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532    http://rec-law.us/1Us5zjP

Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27    http://rec-law.us/1cw5KZA

Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)    http://rec-law.us/11pcuzl

Galloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109    http://rec-law.us/MsfCcE

Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257    http://rec-law.us/GYhrrF

Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)    http://rec-law.us/17Xyy90

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756    http://rec-law.us/1fzW8vM

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768     http://rec-law.us/20lYdSj

Geographic Expeditions, Inc., v. The Estate Of Jason Lhotka, 599 F.3d 1102; 2010 U.S. App. LEXIS 6606    http://rec-law.us/1xtn908

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075    rec-law.us/2k7MWZ1

Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791    http://rec-law.us/1cyS6Fg

Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573    http://rec-law.us/1UhpKkZ

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454    http://rec-law.us/14ywoyb

Gomes v. Boy Scouts of America, et al., 2013 N.Y. Misc. LEXIS 4622; 2013 NY Slip Op 32453(U)    http://rec-law.us/28K5ylz

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)    http://rec-law.us/28K5ylz

Great American Alliance Insurance Company, Plaintiff, v. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148    http://rec-law.us/2wWhuSQ

Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275    http://rec-law.us/HayvH7

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90    http://rec-law.us/2oChhjb

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764    http://rec-law.us/2yCMGar

Gwinner, v. Michael Matt, et al., 2012 U.S. Dist. LEXIS 108827    http://rec-law.us/2cE86vU

Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995        http://rec-law.us/1fR7z6Q

Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495    http://rec-law.us/wHui4x

Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500    http://rec-law.us/177o3Fp

Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547    http://rec-law.us/1hA7aGR

Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126; 1999 Mo. App. LEXIS 315    http://rec-law.us/1LSY6fX

Hellweg v. Special Events Management, 956 N.E.2d 954; 2011 Ill. App. LEXIS 725; 2011 IL App (1st) 103604; 353 Ill. Dec. 826    http://rec-law.us/XLyHuF

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622    http://rec-law.us/1lo1eCo

Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334    http://rec-law.us/1fjsSvW

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Kirton vs. Fields, No. SC07-1739, No. SC07-1741, No. SC07-1742 (FL 2008)    http://rec-law.us/1fqhT37

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351    http://rec-law.us/2a3ZCuv

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Kosok v. Young Men’s Christian Association of Greater New York, 24 A.D.2d 113; 264 N.Y.S.2d 123; 1965 N.Y. App. Div. LEXIS 3042    http://rec-law.us/1c6hzI2

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Lathrop vs. Century, Inc., 2002 Iowa App. LEXIS 1136    http://rec-law.us/2dIphMp

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290    http://rec-law.us/1iPsNm3

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Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160    http://rec-law.us/2eLmS3l

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Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62    http://rec-law.us/ZlrDDY

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Powers v. The Superior Court Of Sacramento County, 196 Cal. App. 3d 318; 242 Cal. Rptr. 55; 1987 Cal. App. LEXIS 2330    http://rec-law.us/18XIUsc

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Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223    rec-law.us/1MAHh8E

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Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234    http://rec-law.us/HerasW

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Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572    http://rec-law.us/265Iwqn

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358    http://rec-law.us/2yVbEGT

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Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)    http://rec-law.us/191FT95

Trinidad v. Capitol Indemnity Corporation, 2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3    http://rec-law.us/1guahzE

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Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375    http://rec-law.us/1U9Iiau

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Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663    http://rec-law.us/2wqzeWC

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592    rec-law.us/2cMikHq

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216    http://rec-law.us/2ddGzBI

Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127    rec-law.us/1BssHLI

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

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Under Indiana’s law, you cannot sue based on a product liability claim for what is actually a service. Meaning Wind tunnels and Climbing Walls provides a service in Indiana, they are not products sold to the public.

Product liability claims are difficult to defend against because they have fewer or more limited defenses. Product Liability claims also award more damages than simple negligence claims. Consequently, if you provide a service and thus are not subject to a product liability claim your risk, and exposures are much lower.

That issue saved the defendant in this case because the release used by the defendant was written poorly and did not protect the defendant from the claims.

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15, 479

State: Indiana, Court of Appeals of Indiana, Fifth District

Plaintiff: Jason C. Marsh and Rhonda Marsh

Defendant: Kirk Dixon, Dyna Soar Aerobatics, Inc.,

Plaintiff Claims: negligence (or gross negligence) and product liability

Defendant Defenses: Release and the Indiana Product Liability statute

Holding: for the plaintiff on the release and the defendant on the product liability claim.

Year: 1999

The plaintiff paid to ride in the defendant’s wind tunnel. The wind tunnel was owned by Dyna Soar Aerobatics, Inc., which was owned by Kirk Dixon. Kirk Dixon was the sole owner and officer of Dyna Soar, Inc.

Before riding the plaintiff was told when turned on he would soar 3-4 feet upward in the air. The plaintiff also signed a release before riding the wind tunnel. When the wind tunnel was turned on he shot 15’ in the air and broke his ankle when he landed.

The plaintiff sued for negligence and product liability claims. The trial court granted the defendant’s motion for summary judgment based on the release, and the plaintiff appealed.

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

The first issue the court tackled was a procedural issue. The plaintiff sued for gross negligence and not simple negligence. The defendant argued that because they did not plead negligence and appealed a negligence claim and plead gross negligence but did not appeal a gross negligence claim they should be stopped from arguing a negligence claim of any type.

However, the court found through various arguments that those issues were moot and not at issue.

The next argument was the plaintiff’s claim the release was not sufficient under Indiana’s law to prevent a negligence claim. The court agreed.

Indiana generally supports releases, but requires the language of the release be sufficient to deny the claims being made.

It is well settled in Indiana that exculpatory agreements are not against public policy. Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.”

The language in the release must clearly and unequivocally state what the release is preventing and who is being protected for those claims.  Meaning the release is void if it does not clearly and unequivocally states the release is to protect the defendant from the defendant’s negligence.

This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” We note, however, that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.

The release stated the plaintiff “fully discharged and released” the defendant from all “liability, claims, demands, actions, and causes of action.” Nowhere did it state the release, released D S from its own negligence. Nor would the court interpret the language of the release to cover that. The specific language was needed for the release to work.

We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

The next issue was the product liability claim. The Indiana Products Liability Act defines a manufacturer as the seller of a product, “a person engaged in the business of selling or leasing a product for resale, use, or consumption.”

Ind. Code § 33-1-1.5-2(5). 2 A product is defined as follows:

Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Personality is another name for something owned that is not attached to the land.

The plaintiff argued that the defendant created a machine, which was a product and sold what the machine did. However, the court found that what the plaintiff bought was a service.

A service is not subject to the Indian Product Liability Act.

The case was sent back to the trial court to go forward on the negligence claim of the plaintiff.

So Now What?

Simply put this lawsuit is based on a poorly written release. I repeat myself, but have someone who understands you and your business or program write a release based upon the law where the release will be applied.

Let me put it another way. Unless you wrote a check or paid money for your release, you would probably end up in court. Attorneys provide free releases not as a service, but knowing there are flaws in the document that will allow them to make a lot more money defending against the lawsuit.

If you got your release from a competitor, how do you know, the competitor gave you a good release? If you got your release from the Internet, how do you know it is for your activity, in your state and covers your law?

And if you think, it is not worth your money; figure that you will lose thirty (30) days of work the first year you are sued, 15-30 days each year until trial and probably 45-days the year of the trial. A good release can keep you at work and out of depositions and courtrooms.

The defendant got lucky on the product’s liability claim. Most states have a broader definition of a product. Put in the release that you are providing a service not selling a product if you have any doubts.

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

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

 


Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Jason C. Marsh and Rhonda Marsh, Appellant-Plaintiffs, vs. Kirk Dixon, Dyna Soar Aerobatics, Inc., Appellee-Defendants.

No. 49A05-9803-CV-146

COURT OF APPEALS OF INDIANA, FIFTH DISTRICT

707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

March 12, 1999, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Richard H. Huston, Judge. Cause No. 49D10-9610-CT-1378.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: For APPELLANT: JAMES F. LUDLOW, Indianapolis, Indiana.

For APPELLEE: MICHAEL A. ASPY, Landau, Omahana & Kopka, Carmel, Indiana.

JUDGES: ROBB, Judge. BAKER, J., and GARRARD, J., concur.

OPINION BY: ROBB

OPINION

[*999] OPINION

ROBB, Judge

Case Summary

Appellants-Plaintiffs, Jason C. Marsh and Rhonda Marsh (collectively referred to as “Marsh”), appeal the trial court’s order granting summary judgment in favor of Appellees, Kirk Dixon and Dyna Soar Aerobatics, Inc. (collectively referred to as “Dyna Soar”) on Marsh’s gross negligence and products liability claim. We affirm in part and reverse in part.

Issues

Marsh raises two issues for our review which we restate as:

I. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the release signed by Marsh was valid; and

II. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the facts of this case do not support a products liability claim.

Facts and Procedural [**2] History

The facts most favorable to the judgment show that on October 9, 1994, Marsh decided to ride in a wind tunnel (“Dyna Soar Machine”) constructed by Kirk Dixon (“Dixon”) for Dyna Soar Aerobatics, Inc. Dixon is the sole officer of this company. The Dyna Soar Ride simulates the experience of free-fall by projecting columns of air through a cable trampoline upon which patrons of the ride levitate. Marsh signed a release which discharged Dyna Soar, its director, and its employees from liability in the event of an accident. While on the Dyna Soar ride, Marsh fell off of a column of air and fractured his ankle. Marsh sued Dyna Soar, bringing both a negligence claim and a products liability claim. The trial court entered summary judgment in favor of Dyna Soar finding that “the facts do not support a products liability claim or a misrepresentation claim.” (R. 159). This appeal ensued.

Discussion and Decision

Before we reach Marsh’s first issue, we note that Dyna Soar argues in their brief that Marsh waives the issue regarding the validity of the release for two reasons. First, Dyna Soar argues that Marsh failed to make a negligence claim in his original complaint. In [**3] his original complaint, Marsh filed a claim under a gross negligence theory. Second, Marsh failed to raise the same issue in his Motion to Correct Errors.

First, we find that Dyna Soar has waived their argument regarding the fact that Marsh made a gross negligence claim rather than a negligence claim. In their brief, they cite no cases and outline no argument developing this position. [HN1] Ind. Appellate Rule 8.3 requires Dyna Soar to support each contention with an argument, including citations to the authorities, statutes, and record for support. App.R. 8.3(A)(7); Burnett v. Cincinnati Ins. Co., 690 N.E.2d 747, 749 (Ind. Ct. App. 1998). Failure of a party to [*1000] present a cogent argument in his or her brief is considered a waiver of that issue. Id.

Second, we conclude that a party does not waive their right to appeal a claim by omitting the same from its Motion to Correct Errors. Marsh raised two issues in its Motion to Correct Errors. He argued that he presented sufficient evidence to create a genuine issue of material fact as to whether Dyna Soar was grossly negligent, and he argued that he had a viable products liability claim. He did not raise the issue of whether the release [**4] was valid. Indiana Trial Rule 59(A) provides that only two issues must be addressed in a Motion to Correct Errors before they may be appealed to this court: newly discovered material evidence and claims that a jury verdict is excessive or inadequate. T.R. 59(A)(1) and (2). The trial rule states that any other issues that are “appropriately preserved during trial may be initially addressed in the appellate brief.” Id. Trial Rule 59(D) states that a Motion to Correct Errors “need only address those errors found in Trial Rule 59(A)(1) and (2). Id. Based on the plain language of Trial Rule 59, therefore, we conclude that [HN2] a party does not waive its right to appeal a trial court’s decision if it fails to raise an issue in its Motion to Correct Errors which was properly preserved at trial. Dyna Soar’s claims to the contrary are based on cases referring to Trial Rule 59 before it was amended. Accordingly, we conclude that the following issue is properly before this court.

I.

Marsh argues that the trial court erred when it entered summary judgment on his negligence claim. In particular, he argues that the release he signed exculpating Dyna Soar was not sufficient to release [**5] Dyna Soar for its own negligence. We agree.

[HN3] It is well settled in Indiana that exculpatory agreements are not against public policy. Powell v. American Health Fitness Center, 694 N.E.2d 757, 760 (Ind. Ct. App. 1998). Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.” 694 N.E.2d at 761. In Powell, the clause at issue stated that Powell released the defendant “from ‘any damages’ and placed the responsibility on Powell for ‘any injuries, damages or losses.” Id. The Powell court concluded:

As a matter of law, the exculpatory clause did not release [the defendant] from liability resulting from injuries she sustained while on its premises that were caused by its alleged negligence. Therefore, the exculpatory clause is void to the extent it purported to release [the defendant] from [**6] liability caused by its own negligence.

694 N.E.2d at 761-62 (emphasis added). This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” Indiana State Highway Commission v. Thomas, 169 Ind. App. 13, 346 N.E.2d 252, 260 (Ind. Ct. App. 1976) (emphasis in original). We note, however, that [HN4] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. See Powell, 694 N.E.2d at 761-62. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. See 694 N.E.2d at 761.

In this case, we are presented with a similar exculpatory clause as in Powell. The release states in pertinent part:

I hereby fully and forever discharge and release [**7] . . . Dyna-Soar Aerobatics, Inc. and all of the partners, directors, officers, employees, and agents for the aforementioned companies from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of any damages, [*1001] both in law and in equity, in any way resulting from personal injuries, conscious suffering, death or property damage sustained while flying Dyna-Soar.

(R. 275). Obviously, the release fails to specifically and explicitly refer to Dyna Soar’s own negligence. The injury sustained by Marsh was not allegedly derived from a risk which was inherent in the nature of the ride. Dixon instructed Marsh that he would only levitate three to four feet from the ground. When the ride started, however, Marsh was allegedly shot fifteen feet in the air and subsequently dropped to the ground. Such a risk is not inherent in the nature of a wind tunnel ride. Thus, if, indeed, the accident occurred as Marsh describes, the injury must have resulted from the negligence of Dyna-Soar. We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this [**8] exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

Dyna Soar argues that the Powell decision should not be applied retroactively. In support of this argument, Dyna Soar cites Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291 (Ind. Ct. App. 1984). In Sink, the court held that ” [HN5] pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.” Id. at 295 (emphasis added). Dyna Soar argues that Powell changed the common law, and therefore, it should not apply to exculpatory agreements made prior to said decision. We disagree. Before the Powell decision, Indiana courts had never decided whether an exculpatory clause required specific language. In fact, in Powell, this court was careful to distinguish other cases which have upheld exculpatory clauses similar to the clause used by Dyna Soar:

Although [**9] we have upheld exculpatory clauses which have used similar language, those cases can be distinguished. In Shumate [v. Lycan, 675 N.E.2d 749 (Ind.Ct.App.1997), trans. denied] and Terry v. Indiana State University, 666 N.E.2d 87 (Ind.Ct.App.1996), the nonspecificity of the language in the exculpatory clauses was not put at issue nor addressed. In Marshall [v. Blue Springs Corp., 641 N.E.2d 92 (Ind.Ct.App.1994)], the focus of the appeal was that there was a genuine issue of material fact as to whether the releases were signed “willingly” or under economic or other compulsion. The nonspecificity of the language used to effect release for the defendant’s own negligence was not presented as an issue nor addressed. In LaFrenz [v. Lake Cty. Fair Bd., 172 Ind. App. 389, 360 N.E.2d 605 (1977)], we noted “the form and language of the agreement explicitly refers to the appellees’ [party released] negligence.” Therefore, had the issue been raised, the language contained the specific and explicit reference to negligence we now hold to be necessary.

Powell, 694 N.E.2d at 762 (citations omitted). From the language of the Powell decision itself, we [**10] conclude that Powell did not change Indiana common law. Thus, Dyna Soar can not show that they relied on earlier Indiana decisions when drafting its exculpatory agreement.

II.

Marsh also argues that the trial court erred when it entered summary judgment on his products liability claim. In particular, he argues that the Dyna Soar machine is a product for purposes of the Indiana Products Liability Act. 1 We disagree.

1 The Indiana Products Liability was codified at Ind. Code § 33-1-1.5-1 et seq. Since the inception of this litigation, however, the Act has been recodified at Ind. Code § 34-20-1-1 et seq. Hereinafter, we shall refer to the Indiana Products Liability Act using its former citation.

[HN6] In order to be subject to liability under the Indiana Products Liability Act, Dyna Soar must be defined as the seller of a product. The Act defines a seller as “a person engaged in the business of selling or leasing a product for resale, use, or consumption.” [*1002] Ind. Code § 33-1-1.5-2(5). 2 A product [**11] is defined as follows:

” [HN7] Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Ind. Code § 33-1-1.5-2(6). 3 Marsh claims that Dixon created a machine, a product, and provided a service. He argues that his claim should not be barred just because a service was provided in this case. In support of his argument, he points this court to Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind. Ct. App. 1990). In Ferguson, a worker fell off of a ladder that was attached to a grain bin. The plaintiffs sued the manufacturers of the grain bin and its component parts under a products liability theory. In determining that the Indiana Products Liability Act applied to the plaintiffs’ claims, the Ferguson court stated: “the legislature did not contemplate a distinction between movable and nonmovable property, but rather sought to exclude transactions which relate primarily to the act of providing a service, such as that provided by an accountant, attorney, or physician.” 555 N.E.2d at 1384-85. [**12] Marsh claims that no such service was provided in his case. We do not find Ferguson dispositive. The crucial issue in Ferguson concerned whether the real estate improvement statute of limitations or the products liability statute of limitations applied to the plaintiffs’ products liability claim. Thus, the Ferguson court discussed whether property affixed to real estate constitutes a product. Such is not the issue in the present case.

2 See now Ind. Code § 34-6-2-136

3 See now Ind. Code § 34-6-2-114

We find Hill v. Rieth-Riley Const. Co., Inc., 670 N.E.2d 940 (Ind. Ct. App. 1996) more applicable to the set of facts presented here. In Hill, the defendants removed and reset guardrails to facilitate the resurfacing of U.S. 31. The plaintiff struck one of these guardrails and brought suit against the defendants under the Indiana Products Liability Act. This court held that the contract between the Indiana Department of Transportation and the plaintiffs was predominantly a contract for [**13] services. The Hill court stated: “even if it were true that 31 new concrete plugs were installed and some rusted rails replaced, the [plaintiffs] have presented no evidence that this contract was not “for the most part” about the service of resurfacing the roadway.” 670 N.E.2d at 943. In this case, the transaction between Marsh and Dyna Soar wholly involved a service. By purchasing a ticket from Dyna Soar, Marsh received the limited right to ride the Dyna Soar machine. He did not receive an interest in any property. In fact, Dyna Soar retained all rights to operate and control the machine in question. We conclude that the trial court did not err by entering summary judgment against Marsh on his products liability claim.

Affirmed in part and reversed in part.

BAKER, J., and GARRARD, J., concur.


Defendant loses an interesting product liability case. Usually, the replacement of a component by the owner of the product after the sale is an intervening act which releases the manufacture from harm. In this case, the change was not enough to overcome the initial negligent design.

The Zip Line was designed with bungee cord that was used to break the ride. The owner of the zip line replaced the bungee cord with another bungee cord that was allegedly shorter than the initial cord in the design by the plaintiff.

Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Benjamin Sanchez, Also Known as Gerard Sanchez

Defendant: Project Adventure, Inc., Appellant-Respondent and Third-Party Plain-tiff-Appellant. Bedford Central School District, Third-Party Defend-ant-Respondent, et al., Third-Party Defendant

Plaintiff Claims: Product Liability Claim

Defendant Defenses: Intervening change in the product

Holding: For the Defendant

Year: 2004

The facts are simple. The plaintiff, a 15-year-old, was on a school trip to a challenge course. A bungee cord was used on the “zip wire” as a braking system. The bungee failed, hitting the plaintiff in the eye blinding him.

The then-15-year-old plaintiff, while on a school field trip to a challenge course located at a facility operated by third-party defendant Bedford Central School District (Bedford), was standing in line for an elevated “zip wire” ride, when the bungee cord used as a braking device on the “zip wire” snapped and hit his right eye. The injury produced by the impact of the bungee cord caused plaintiff to go blind in that eye.

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

The course was designed by the defendant Project Adventure. The design incorporated a bungee cord to break the zip line. The owner of the zip line replaced the original bungee cord with another bungee cord, which was shorter.

The defendant admitted liability for the accident. However, they argued the owner of the zip line who had replaced it was the party with principal liability for the injuries.

The “zip wire” had been designed and inspected by defendant, which conceded liability for the accident, but, citing evidence that the bungee cord used on the “zip wire” had been replaced before the accident by a Bedford employee, contended that Bedford was principally responsible for plaintiff’s harm.

Normally, an intervening, act, such as replacing the cord, in many types of negligence claims is enough to shift the liability of the defendant to a third party.

Here the appellate court agreed with the jury and found that the design was negligent, and the shortness of the replacement bungee was not the cause of the accident. The use of a bungee as a breaking device was the cause of the accident, no matter the length.

Defendant urges that this finding was contrary to the weight of the evidence. We disagree. The evidence fairly interpreted permitted the jury to conclude that while Bedford had been negligent in utilizing a replacement bungee cord that was too short, this negligence merely echoed a design defect for which defendant was responsible, and thus did not appreciably augment the injury-producing risk.

The appellate court agreed with the jury and held the designer of the course liability for the injuries of the plaintiff.

So Now What?

As stated above, this is an odd case because of the intervening act. However, a bad or negligent design, no matter what the intervening act, will not release the defendant from liability.

Product liability cases are hard to win if the design is found to be negligent.

Retailers need to be aware that any act that modifies or changes a product in any way, other than how it arrived from the manufacturer may place them in the same position as a manufacture.

Examples of this are bindings that are mounted on skis or scuba tanks that are filled. In both cases, the general liability policies of ski shops and scuba shops usually understand and have coverage for this. Make sure if you are modifying a product other than how the manufacturer suggested that you understand the risks and have the coverage you need.

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Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury.

Issues of why the plaintiff was standing up and not getting out of the way on a tubing hill was not discussed in the appellate decision.

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

State: Illinois, Appellate Court of Illinois, First District, Fifth Division

Plaintiff: Susan Buckel

Defendant: Tube Pro Inc.

Plaintiff Claims: Negligence (based on a product liability claim)

Defendant Defenses: No proof the allegedly defective product was theirs

Holding: For the Defendant

Year: 2016

The defendant is a snow tubing operation at a city park in Illinois. The plaintiff was tubing when something sticking out of the bottom of the tube slowed her down and stopped her. While stopped on the hill the plaintiff was struck by another tuber and was injured.

The defendant filed a motion for summary judgment saying the plaintiff could not prove her case because she could not identify what tube, let alone whose tube, (manufactured by whom), was the defective tube. The court granted the defendant’s motion, and the plaintiff appealed.

There was also exculpatory language on the back of the lift ticket the plaintiff purchased. It was raised by the defendant and discussed in one paragraph in the decision, but was not used by the court to reach its conclusion.

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

The court started its decision by looking at the testimony from the plaintiff used to describe the tube she was riding. Her testimony of the color of the tube did not match the receipts from the tubing hill that showed the tubes that were purchased from the defendant. The tubes purchased from the defendant was also purchased ten years prior to the accident so very few if any of them were still in operation with the tubing hill.

Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”

Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.

The defendants also introduced evidence showing that at the time tubes were purchased from the defendant, tubes were also purchased from another tube manufacturer.

The tubes sold by the defendant also had a plastic bottom, and the plaintiff testified her inner tube had a regular rubber bottom.

The court then looked at how a product liability claim based on negligence needed to be proven under Illinois’s law.

“A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused by that breach, and (4) damages. “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.”

However, the most important issue is the plaintiff must identify the manufacturer of the defective product and establish a relationship between the injury and the product. The identification of the manufacturer must be more than speculation.

Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.”

Because the tube described by the plaintiff was different from what was sold by the manufacturer and because the plaintiff did not have the actual tube, the appellate court upheld the decision of the trial court.

She testified that a photograph of a snow tube used by her son showed a red-colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against the defendant.

So Now What?

Simple but very lengthy decision because the court bent over backwards to prove why it could not rule for the plaintiff. Yet this decision is instructive because you have to have more than an injury to ask for money in a lawsuit or claim.

There must be a relationship with what caused you the injury, and the person you are claiming caused the injury and a relationship with you. Lacking one of those it does not matter if you signed a release or assumed the risk because you can’t prove negligence.

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Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Susan Buckel, Plaintiff-Appellant, v. Tube Pro Inc., Defendant-Appellee.

No. 1-15-0427

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

March 31, 2016, Decided

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 13 L 116. The Honorable Kathy M. Flanagan, Judge, presiding.

DISPOSITION: Affirmed.

JUDGES: JUSTICE GORDON delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

OPINION BY: GORDON

OPINION

JUSTICE GORDON delivered the judgment of the court.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

[*P1] Held: Where plaintiff did not and cannot produce the allegedly defective snow tube involved in her snow tubing accident or produce any photographs of the snow tube itself, and where the subject snow tube was never retrieved or examined for defects, plaintiff cannot establish a genuine issue of material fact that defendant was the manufacturer and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P2] Plaintiff Susan Buckel brought this products liability action based on a negligence theory against defendant Tube Pro Inc., seeking damages for injuries she sustained during a snow tubing accident at the Villa Olivia ski facility in Bartlett, Illinois, on January 17, 2011. Plaintiff alleges that she was injured as a result of a defective snow tube manufactured by defendant. Defendant moved [**2] for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer of the snow tube in question. Defendant further argued that, without the claimed defective snow tube, plaintiff could not prove the necessary elements to establish a prima facie case of products liability against defendant. The trial court granted defendant’s motion, and plaintiff now appeals.

[*P3] For the reasons that follow, we affirm the trial court’s grant of summary judgment in favor of defendant.

[*P4] BACKGROUND

[*P5] I. Pleadings

[*P6] A. Complaint

[*P7] On January 4, 2013, plaintiff filed a complaint against defendants: (1) Daniel Corrado; Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia; and Villa Olivia1; (2) Tube Pro; (3) “Unknown Snow Tube Manufacturer”; and (4) “Unknown Owners and Non-Record Claimants.”

1 On July 24, 2013, the trial court granted plaintiff’s motion to voluntary dismiss without prejudice, Daniel Corrado, Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia. The record does not contain a copy of plaintiff’s motion, but includes the trial court’s order [**3] granting it.

[*P8] In her complaint, plaintiff made the following allegations:

[*P9] Plaintiff alleged that she was at Villa Olivia on January 17, 2011, and purchased a ticket to snow tube on the premises of Villa Olivia. Villa Olivia provided her with a snow tube to use, which was manufactured by defendant. As she descended down the hill using the snow tube provided by Villa Olivia, a sharp object stuck out of the tube, dug into the ground, and caused the snow tube to stop on the hill. While her snow tube was stopped on the hill, she was struck by another snow tube from behind and was injured. Plaintiff alleged her snow tube was defective.

[*P10] Only count II of plaintiff’s complaint, which is entitled “Negligence,” is directed at defendant. Plaintiff alleged that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, and sold by defendant. Plaintiff further alleged that defendant negligently designed, manufactured, distributed, and sold the snow tube equipment without appropriate safeguarding and an adequate warning label. Plaintiff also contended that defendant failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube [**4] safely, or to properly inform or instruct the purchaser of the snow tube’s use. Plaintiff alleged that defendant negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in her accident. Plaintiff claimed that, as a result of defendant’s “careless and negligent acts and omissions,” she “was severely and permanently injured both internally and externally.”

[*P11] B. Answer

[*P12] On April 18, 2013, defendant filed its “Answer and Affirmative Defense” to plaintiff’s complaint. Defendant admitted that it manufactured snow tubes, including certain snow tubes used at Villa Olivia and that, on or before January 17, 2011, it engaged in the business of designing, manufacturing, assembling, distributing, and selling snow tubes. Defendant answered that it had no knowledge regarding the truth or falsity of plaintiff’s statement that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, or sold by defendant. Defendant denied it had negligently designed, manufactured, distributed, and sold snow tube equipment without appropriate safeguarding and an adequate warning label. Defendant also denied plaintiff’s allegation [**5] that it failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube safely, or to properly inform or instruct the purchaser of the snow tube’s use. Defendant also denied that it negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in plaintiff’s accident.

[*P13] Defendant also asserted the affirmative defense of comparative negligence, claiming plaintiff was negligent in failing to observe and avoid the snow tube which allegedly struck her and was negligent in failing to move from the middle of the hill, when she knew, or in the exercise of ordinary care, should have known, that other snow tubes were descending down the hill. Defendant also claimed plaintiff was negligent in failing to properly inspect the subject snow tube prior to riding in it and was negligent in failing to keep a proper lookout. Defendant also alleged plaintiff was inattentive and unobservant to surrounding conditions and was the sole proximate cause of her alleged injuries and damages.

[*P14] C. Plaintiff’s Reply

[*P15] In response to defendant’s affirmative defense of comparative negligence, plaintiff denied she was negligent [**6] in failing to observe and avoid the snow tube which allegedly struck her or negligent in failing to move from the middle of the snow tube hill. Plaintiff also denied that she was negligent in failing to properly inspect the subject snow tube prior to riding it or that she was negligent in keeping a proper lookout. Plaintiff denied she was inattentive or unobservant to surrounding circumstances.

[*P16] D. Amended Complaint and Answer

[*P17] On July 8, 2013, plaintiff filed an amended complaint against defendant, naming as additional defendants “Village of Bartlett and the Bartlett Park District.”2 The allegations of count II, which were directed at defendant, remained substantially the same.

2 On October 28, 2013, plaintiff filed a motion to voluntarily dismiss, without prejudice, the Village of Bartlett, which the trial court granted on November 1, 2013. 735 ILCS 5/2-1009 (West 2010). Additionally, on November 1, 2013, the trial court granted defendant Bartlett Park District’s section 2-619(a)(5) motion to dismiss count V of plaintiff’s amended complaint, without prejudice. 735 ILCS 5/2-619(a)(5) (West 2010). Tube Pro is the only remaining defendant on appeal.

[*P18] On July 12, 2013, defendant filed its “Answer and Affirmative Defense to Plaintiff’s Amended Complaint,” [**7] which asserted the same affirmative defenses and denied the same allegations.

[*P19] On March 25, 2014, defendant filed a motion for leave to file an amended answer and affirmative defenses, which included the defense of comparative negligence pled in its prior answer plus additional affirmative defenses. Defendant raised the additional affirmative defense of joint and several liability and further contended that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause of action against defendant. Defendant also raised as an affirmative defense that the negligent act of the snow tube rider who struck plaintiff was an intervening or superseding cause of her accident, which barred recovery against defendant. The trial court granted the motion on March 25, 2014.

[*P20] On April 30, 2014, plaintiff filed a motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.3

3 There is no order in the record indicating whether the trial court granted plaintiff’s motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.

[*P21] While plaintiff admitted that [**8] she paid for a ticket to engage in snow tubing at Villa Olivia, she denied defendant’s allegation that, by purchasing the snow tubing ticket, she agreed to the terms and conditions of the exculpatory clause contained on the ticket. Plaintiff denied the allegation that the parties to the exculpatory clause intended that the terms and conditions of the exculpatory clause apply to defendant. Plaintiff further denied that defendant was a thirdparty beneficiary of the exculpatory clause and that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause against defendant.

[*P22] As to defendant’s additional affirmative defense of joint and several liability, plaintiff denied the allegation that the sole proximate cause of plaintiff’s accident was the negligent acts or omissions, or intentional, reckless, willful, and wanton acts or omissions, of other persons or entities not presently parties to the lawsuit, including, but not limited to, Bartlett Park District and the snow tube rider who struck her. Plaintiff further denied defendant’s allegation that, pursuant to section 2-1117 of the Illinois Code of Civil Procedure, any fault, which it specifically denied, was less than 25% of the [**9] total fault. 735 ILCS 5/2-1117 (West 2010).

[*P23] Plaintiff denied defendant’s affirmative defense that the negligent act or omission of the snow tube rider who struck her was an intervening or superseding cause of her accident, which barred recovery against defendant. Plaintiff also denied defendant’s allegation that the intervening or superseding negligent acts or omissions of the snow tube rider who struck her barred her recovery against defendant.

[*P24] On May 23, 2013, defendant filed answers to plaintiff’s interrogatories. Defendant named its president and co-founder, William Pawson, and its cofounder, Annie Pawson, as witnesses who would testify to the design, manufacture, and sale of snow tubes by defendant. Defendant also stated that William Pawson and Annie Pawson would testify that defendant manufactures snow tubes for sale and does not inspect or maintain products subsequent to sale to a customer.

[*P25] Plaintiff filed answers to defendant’s interrogatories.4 Plaintiff named certain of defendant’s employees as witnesses who would testify regarding their knowledge of the occurrence alleged in her complaint, including their observations and the policies of defendant. The witnesses included William Pawson, Annie [**10] Pawson, Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.5

4 Exhibit “A” to defendant’s motion for authorization regarding mental health records, subpoenas, and testimony contains plaintiff’s answers to defendant’s interrogatories, but it does not provide a date of filing.

5 The record does not contain a copy of the depositions of Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.

[*P26] On December 10, 2013, the trial court ordered party depositions to be completed by January 28, 2014. The depositions of William Pawson6 and Annie Pawson7 were discovery depositions.

6 Plaintiff attached an excerpt of William Pawson’s deposition in her response to defendant’s motion for summary judgment, and defendant attached the entire transcript of William Pawson’s deposition in its motion for summary judgment.

7 Plaintiff attached the entire transcript of Annie Pawson’s deposition as Exhibit “D” to her response to defendant’s motion for summary judgment.

[*P27] II. Motion for Summary Judgment

[*P28] A. Defendant’s Motion

[*P29] On September 15, 2014, defendant moved for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer [**11] of the snow tube in question. In its motion, defendant claimed that, because the snow tube was never inspected or retained after the accident, plaintiff could not prove the necessary elements to establish a prima facie case of product liability against defendant.

[*P30] In support of its motion for summary judgment, defendant relied on invoices indicating that Villa Olivia purchased snow tubes from two different companies: (1) defendant; and (2) Tough Tube Manufacturing Inc. (Tough Tube). An invoice showed that in September 2000, Villa Olivia purchased 100 snow tubes from Tough Tube. Another invoice showed that in December 2012, Villa Olivia purchased 14 refurbished snow tube covers from defendant. The invoices also showed that in 2008, Villa Olivia purchased 5 red snow tubes, 1 navy blue snow tube, and 10 refurbished snow tube covers from defendant. The invoices showed that in 2009, Villa Olivia purchased 10 royal blue snow tubes and 36 refurbished covers from defendant.

[*P31] Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to [**12] establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”

[*P32] Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.

[*P33] William Pawson also testified that defendant never experienced any reports that its snow tubes were defective. William Pawson testified that he was not sure “how” or “why” a protruding object could come out of plaintiff’s snow tube. He testified that: “There is just the inner tube. It’s the only accessory item inside the actual tube cover. And the valve is welded to the tube itself. So I don’t understand. I’m not sure how that could occur.”

[*P34] Defendant further relied [**13] on plaintiff’s deposition that the snow tube involved in her accident did not have a plastic bottom. Plaintiff testified that the type of material she observed on the bottom of her snow tube “[was] not plastic,” but a normal inner tube material, which she assumed was rubber. Defendant also referenced William Pawson’s testimony to show that the bottom of defendant’s snow tubes were plastic. He testified that one of defendant’s component parts for its snow tubes is a “plastic bottom.”

[*P35] Defendant cited plaintiff’s deposition to show that she could not say for certain who the manufacturer of the snow tube was. Plaintiff testified that “[she] did not look at the markings on the tube” she used at the time of her accident and, therefore, was uncertain as to its manufacturer. Plaintiff testified, while looking at photographs that showed different snow tubes in use at Villa Olivia “before her accident,” she could not say for certain that they showed the name of defendant. Plaintiff testified:

“I can’t tell you the exact letters; but I can tell you how when you blow it up that it looks like two words, okay. And I can kind of make out certain letters; but could I clearly say it was a T or a P or [**14] a B or what, no.”

Plaintiff also testified she did not take any photographs of the exact snow tube involved in her accident.

[*P36] In sum, defendant argued that it was entitled to summary judgment as a matter of law because the snow tube involved in plaintiff’s accident was no longer available and, therefore, plaintiff could not identify the manufacturer of the snow tube nor support a reasonable inference that defendant manufactured the snow tube she used at the time of her tubing accident. In addition, defendant argued plaintiff could not prove a prima facie case without the allegedly defective snow tube.

[*P37] B. Plaintiff’s Response

[*P38] On December 1, 2015, plaintiff filed a response to defendant’s motion for summary judgment. In her response, plaintiff argued both: (1) that defendant was the manufacturer of the plaintiff’s defective snow tube; and (2) that genuine issues of material fact existed as to whether defendant’s defective snow tube was the proximate cause of plaintiff’s injuries.

[*P39] Plaintiff alleged that her snow tube was defective. Attaching excerpts of her deposition transcript, plaintiff described the defect as follows:

“DEFENDANT’S ATTORNEY: When is the first occasion you had to look [**15] at the tube after the accident?”

PLAINTIFF: The minute I came to a stop.

DEFENDANT’S ATTORNEY: While you were on the hill?

PLAINTIFF: While I’m on the hill.

DEFENDANT’S ATTORNEY: What did you see?

PLAINTIFF: I wanted to know why I was stuck. So I lifted up the tube, and I could see a 5-inch slash and this hard spiky thing sticking out of the tube *** It was a solid, a sharp object.”

Plaintiff further described the defect as follows:

“DEFENDANT’S ATTORNEY: Before the operator came up to you and upon you, did you look at the tube?

PLAINTIFF: Yes.

DEFENDANT’S ATTORNEY: And this–whatever you observed on the bottom of the tube, was it the material of the bottom of the tube?

PLAINTIFF: It looked like the insides of the tube.

DEFENDANT’S ATTORNEY: Well, the tube you told me was kind of like, in your mind at least, a standard rubber inner tube, correct?

PLAINTIFF: Well, I kind of remember–it could have been–I don’t recall the exact material of the tube, the outside of the tube; but the frozen object looked like it was coming out of the tube.

DEFENDANT’S ATTORNEY: This frozen object, was it part of the material of the tube or some foreign object?

PLAINTIFF: I thought maybe it was a metal piece or something, [**16] and it wasn’t. It was the innards of the tube, and I couldn’t even move it with my glove. It was shaped as if it was, like, a knifish form coming out.

DEFENDANT’S ATTORNEY: And how long was this shape?

PLAINTIFF: I know that the slash in the tube was about that big (indicating), so 5 inches, and then this item was coming out of it.”

[*P40] Plaintiff also attached the deposition transcript of Villa Olivia employee, Michael Conrardy, who worked on the snow tube hill for multiple winter seasons. Conrardy testified that during the 2010-2011 winter season, he found one snow tube in their “tube shack” that had a crack in it. Conrardy testified:

“DEFENDANT’S ATTORNEY: Did you ever become aware of cracking, cracks in the bottom of any snow tubes?

CONRARDY: Yeah, that was one thing that I noticed when I was working. I was bringing out the tubes out of the tube shack in the morning and there was quite a decent crack in the bottom.”

Conrardy further described the snow tube as follows:

“PLAINTIFF’S ATTORNEY: In as much detail as you can, can you describe to me first where the slit was?

CONRARDY: It was like the side. I don’t remember if it was the side near to where the rope connected or not, but it was just [**17] on the general like circumference of it, you know, and it was like a rounded slit that went–it was about eight inches long, and it wasn’t protruding in. It was more protruding out.

PLAINTIFF’S ATTORNEY: Okay.

CONRARDY: So if someone went down the hill, as a safety issue, if it was protruding out and they caught an edge they could just flip ***.”

[*P41] Plaintiff highlighted Conrardy’s testimony where he stated that “It would have caught snow and that’s what I’m saying. It wouldn’t protrude into the tube where it could hurt the person, like their bottom. It would literally protrude down and out.” Conrardy further stated that the slit “was on the bottom plastic part like right at the edge.” Conrardy recalled the tube with the slit “was just one of the ordinary tubes.”

[*P42] Plaintiff also attached the deposition transcript of Edward Jorens, Villa Olivia superintendant of golf and skiing, who was involved in the initial procurement and purchase of snow tubes for the facility. Jorens testified that “once in a while there’s cracks” in the plastic bottoms of the snow tubes. Jorens also testified that cracks “bigger than 2 or 3 inches or so” on the bottom of the snow tubes would “[t]o a certain degree” affect [**18] the speed of the tube going down the hill. Jorens also testified that he discussed the cracking at the bottom of the tubes with defendant and that “Annie [Pawson] [was] usually the person I talked to from Tube Pro.”

[*P43] In her response, plaintiff attached the deposition of Annie Pawson, who testified that defendant receives yearly complaints “in general” from customers about the bottom of their snow tubes being cracked. Annie Pawson testified that she has personally seen a bottom of a defendant snow tube being cracked and described it “as a slit, like a little slit, a scoring, just a little slit.” Annie Pawson also testified, “I don’t recall specifically my customer mentioning cracks, per se. I just recall them requesting that we refurbish some of their old stock that they had purchased in the past.”

[*P44] Plaintiff further claimed in her response that it was highly unlikely that Tough Tubes were being used at Villa Olivia at the time of her accident. In support of this claim, plaintiff attached testimony by Jorens, who testified that “an average of four or five” snow tubes were stolen per year. Jorens further testified:

“DEFENDANT’S ATTORNEY: With regard to the 100 tubes purchased from Tough [**19] Tube in September 2000, by the time you retired in December of 2010, do you know how many of those tubes were still left at Villa Olivia?

JORENS: Not very many. I’m sure of that.

DEFENDANT’S ATTORNEY: Why do you say that?

JORENS: Well, in other words, every year we’d send them back to get refurbished. Probably anywhere from I’m guessing 10, 10 of the tubes.”

DEFENDANT’S ATTORNEY: Did you send tubes to be refurbished to any company other than Tube Pro?

JORENS: No.”

[*P45] Plaintiff also relied on Jorens’s testimony to show that more defendant snow tubes were being used at Villa Olivia at the time of her accident than Tough Tube snow tubes. Jorens testified that, from 2000 to when he retired in 2010, Villa Olivia continued to purchase snow tubes from defendant. Jorens did not believe Villa Olivia purchased snow tubes from any other company from 2000 to 2010. Plaintiff also attached invoices showing that, from 2002 to 2009, Villa Olivia purchased 60 refurbished snow tube covers from defendant. The invoices also show that Villa Olivia purchased “5 red snow tubes,” “1 double rider snow tube,” “10 royal blue snow tubes,” and 27 inner tubes from defendant in the same period. Plaintiff also relied on [**20] Annie Pawson’s testimony and a “Customer Sales Ordering Info Sheet” to show that, in November 2002, defendant purchased 30 defendant snow tubes with Pepsi logos on them. Pawson testified as follows:

“PLAINTIFF’S ATTORNEY: Okay. And then the number of tubes, 30 and it has Pepsi. Do you know what the word next to Pepsi–is that tubes?

ANNIE PAWSON: Tubes, yes sir.

PLAINTIFF’S ATTORNEY: Is that a purchase by Villa Olivia, 30 new Pepsi tubes?

ANNIE PAWSON: Yes, it is.”

[*P46] Plaintiff also argued in her reply that “she was not an expert on materials or plastics” and therefore, her testimony about how her tube did not have a plastic bottom was immaterial in determining the identity of the manufacturer. Plaintiff relies on Conrardy’s testimony to show that he, too, was uncertain as to what the material of the tube bottoms were. Plaintiff points out that Conrardy testified that he believed the bottom of the tube was made of rubber, but then said it could be made of plastic after defendant counsel “raised the possibility of the bottom being plastic.” Conrardy testified:

“DEFENDANT’S ATTORNEY: And is it possible that the bottom may have been plastic as opposed to rubber, if you know?

CONRARDY: Actually, [**21] yeah, that’s a good point. I could see it being plastic because it just seemed more hard and thicker than the inside, so that actually makes sense because the inside was more cushiony than the bottom.”

[*P47] Plaintiff also attached an excerpt of William Pawson’s deposition transcript where he described Tough Tube and defendant as both having plastic bottoms. Pawson testified that they both had the “same sewing design premise whereby you have a sewn canvas top that’s pleated into the plastic bottom with the seatbelt based trim.”

[*P48] Finally, in her response, plaintiff claimed that she could still prove a prima facie case without the defective snow tube because the defect at issue was known to defendant.

[*P49] C. Trial Court’s Ruling

[*P50] On January 21, 2015, the trial court granted defendant’s motion for summary judgment. In its five-page memorandum opinion, the trial court held that defendant was entitled to summary judgment because “[p]laintiff [could not] establish, or even raise a question of fact that, defendant was the manufacturer of the subject snow tube.” The trial court noted that the “subject snow tube [was] no longer in existence” and, therefore, plaintiff could not “meaningfully identify the specific [**22] snow tube” that “she rode on the day of the accident.” The trial court stated that: “[n]either the Plaintiff nor any other evidence in the record can identify anything about the subject snow tube which distinguishes it from others in such a way that a reasonable inference can be made that defendant was the manufacturer of it.” The trial court found:

“[T]he evidence does not show that the specific defective condition complained of-that the tube bottom contained a 4 to 5 inch hard and sharp protrusion poking through a 5 inch slash which caused the tube to completely stop while going down the hill was known to be a common defect in a Tube Pro snow tube.”

The trial court reasoned: “The circumstantial evidence here may raise a possibility that defendant was the manufacturer of the snow tube, but it does not justify an inference of a probability that it was the manufacturer.” (Emphasis in original.) Based upon the foregoing, the trial court found that defendant was entitled to summary judgment.

[*P51] On February 12, 2015, plaintiff filed a notice of appeal, and this appeal followed.

[*P52] ANALYSIS

[*P53] In this direct appeal, plaintiff appeals the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues [**23] that the evidence demonstrates a genuine issue of material fact about whether defendant was the manufacturer of the snow tube that caused her injuries. For the following reasons, we affirm the trial court’s grant of summary judgment.

[*P54] I. Standard of Review

[*P55] Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). When determining if the moving party is entitled to summary judgment, the court construes the pleadings and evidentiary material in the record strictly against the movant. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 262 Ill. Dec. 815 (2002). We review a trial court’s decision on a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). De novo consideration means the reviewing court performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 350 Ill. Dec. 63 (2011).

[*P56] “Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. “Mere speculation, conjecture, or guess is insufficient to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 242 Ill. Dec. 738 (1999). The party [**24] moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624, 872 N.E.2d 431, 313 Ill. Dec. 448 (2007). The movant may meet its burden of proof either “by affirmatively showing that some element of the case must be resolved in its favor” or by “‘establishing that there is an absence of evidence to support the nonmoving party’s case.'” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). To prevent the entry of summary judgment, the nonmoving party must present a bona fide factual issue and not merely general conclusions of law. Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 670, 601 N.E.2d 1347, 176 Ill. Dec. 649 (1992)). Therefore, while the party opposing the motion is not required to prove her case at the summary judgment stage, she must provide some factual basis to support the elements of her cause of action. Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036, 911 N.E.2d 1144, 331 Ill. Dec. 914 (2009); Ralston v. Casanova, 129 Ill. App. 3d 1050, 1059, 473 N.E.2d 444, 85 Ill. Dec. 76 (1984). On a motion for summary judgment, the court cannot consider any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d 821, 824, 861 N.E.2d 258, 308 Ill. Dec. 193 (2006). Thus, the party opposing summary judgment must produce some competent, admissible evidence which, if proved, would warrant entry of judgment in her favor. Brown, Udell & Pomerantz, 369 Ill.App.3d at 824. Summary judgment is appropriate if the nonmoving party cannot establish an element of her claim. Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368, 851 N.E.2d 626, 303 Ill. Dec. 439 (2006).

[*P57] We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis, and even if the trial court’s reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

[*P58] II. Plaintiff’s [**25] Claim Against Defendant

[*P59] Plaintiff sued defendant under a products liability claim based on a theory of negligence. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 89, 828 N.E.2d 1128, 293 Ill. Dec. 630 (2005) (discussing the differences between a products liability case based on a negligence theory and a strict products liability case). Plaintiff alleged that defendant committed one or more of the following careless and negligent acts or omissions: (1) designed, manufactured, distributed and sold the snow tube equipment without appropriate safeguarding and an adequate warning label; (2) failed to adequately warn users of the dangers of the snow tube; (3) failed to design and manufacture the snow tube safely; (4) failed to properly inform or instruct the purchaser of the snow tube’s use; and (5) negligently designed, manufactured, tested, inspected (or failed to test and inspect), and heeded the test results of the subject snow tube involved in her accident.

[*P60] “A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 923, 871 N.E.2d 82, 312 Ill. Dec. 682 (2007) (citing Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 117, 454 N.E.2d 197, 73 Ill. Dec. 337 (1983)). To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused [**26] by that breach, and (4) damages. Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 82, 955 N.E.2d 1138, 353 Ill. Dec. 327 (citing Heastie v. Roberts, 226 Ill. 2d 515, 556, 877 N.E.2d 1064, 315 Ill. Dec. 735 (2007)). “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” Sobczak , 373 Ill. App. 3d at 923 (quoting Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 433, 764 N.E.2d 35, 261 Ill. Dec. 744 (2002)). “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Sobczak v. General Motors Corp., 373 Ill. App. 3d at 923 (citing Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 255, 864 N.E.2d 249, 309 Ill. Dec. 383 (2007)). Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.” Blue, 345 Ill. App. 3d at 463 (citing Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 419, 681 N.E.2d 156, 224 Ill. Dec. 174 (1997)).

[*P61] Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” Zimmer v. Celotex Corp., 192 Ill. App. 3d 1088, 1091, 549 N.E.2d 881, 140 Ill. Dec. 230 (1989) (citing Schmidt v. Archer Iron Works, Inc., 44 Ill. 2d 401, 405-06, 256 N.E.2d 6 (1970), cert. denied 398 U.S. 959, 90 S. Ct. 2173, 26 L. Ed. 2d 544). While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.” Zimmer, 192 Ill. App. 3d at 1091. Therefore, when circumstantial evidence is relied on, the circumstances must justify an inference of probability as distinguished from mere possibility.” (Emphasis added.) Naden v. Celotex Corp., 190 Ill. App. 3d 410, 415, 546 N.E.2d 766, 137 Ill. Dec. 821 (1989); Mateika v. LaSalle Thermogas Co., 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 49 Ill. Dec. 649 (1981); Zimmer, 192 Ill. App. 3d at 1091.

[*P62] III. Parties’ Arguments

[*P63] A. [**27] Plaintiff’s Arguments

[*P64] On appeal, plaintiff claims that the trial court erred in granting defendant’s motion for summary judgment because she raised a genuine issue of material fact about whether defendant was the manufacturer of the snow tube. Plaintiff argues that, since the court is to consider the evidence strictly against defendant and liberally in favor of her, summary judgment was not a proper disposition here. Plaintiff argues that the record, including invoices and witness testimony, shows that fair minded persons could draw different conclusions about whether defendant was the manufacturer.

[*P65] Specifically, plaintiff argues that according to the testimony of Jorens, Villa Olivia’s superintendent of golf and skiing, four to five snow tubes were stolen each year between 2000 to 2011 and that the majority of defendant snow tubes purchased by Villa Olivia occurred in 2008 and 2009. According to plaintiff, this figure equates to potentially 44 to 55 Tough Tubes being stolen prior to plaintiff’s injury. Plaintiff also relies on invoices that show Villa Olivia purchased 60 refurbished snow tube covers from defendant. Plaintiff argues that, given the refurbishment of these 60 snow tubes [**28] and the approximately 44 to 55 Tough Tubes stolen each year between 2000 to 2011, it was highly unlikely that Tough Tubes were still being used at Villa Olivia at the time of plaintiff’s accident. Plaintiff also relies on the testimony of Jorens to show that more defendant snow tubes than Tough Tube snow tubes were being used at Villa Olivia in January 2011.

[*P66] Plaintiff also claims that witness testimony raises questions of material fact as to whether the defect identifies defendant as the subject manufacturer. Plaintiff claims that defendant was aware of alleged defects in its snow tubes at Villa Olivia prior to her accident. Annie Pawson testified that she had observed defective defendant snow tubes before and that Villa Olivia employee Conrardy described the defective snow tube he observed as having a protruding crack. Additionally, plaintiff relies on her own testimony when she described the alleged defect “like a knife had gone through the ice, sharp object had gone through the ice.” Jorens testified that he discussed the cracking plastic defect with defendant, and that the plastic cracking would decrease speed on a hill. Plaintiff also observes that, prior to January 2011, defendant [**29] had received yearly complaints regarding the cracking of the plastic bottoms.8 Based on this evidence, plaintiff argues that she can prove a prima facie case without the snow tube because the defect at issue was known to defendant.

8 In her brief, plaintiff claims that, prior to January 2011, defendant received yearly complaints regarding the plastic bottoms cracking, without citing to the record.

[*P67] B. Defendant’s Arguments

[*P68] Defendant, on the other hand, argues that the evidence presented to the trial court shows that plaintiff could not identify anything about the subject snow tube which distinguished it from other tubes such that a reasonable inference could be drawn that defendant manufactured the allegedly defective snow tube. Defendant claims that, without the snow tube, plaintiff has failed to present evidence on a critical element in her product liability claim based on negligence. Since plaintiff did not and could not produce the snow tube, she could not introduce the alleged defect into evidence. Consequently, defendant argues that plaintiff has failed to show and cannot show that any defect existed at the time the snow tube left defendant’s control. Hence, without the tube itself [**30] or photos of it, defendant asserts that a jury could only speculate about whether plaintiff’s injuries were caused by a defect in the tube, and whether the defect was present when the snow tube allegedly left defendant’s control, and whether defendant even manufactured the snow tube. Under such circumstances, defendant argues that the trial court properly entered summary judgment in its favor.

[*P69] IV. Failure to Cite Authority

[*P70] First, we observe that plaintiff’s appellate brief fails to comply with Illinois Supreme Court Rule 341(h)(7), which requires a proponent to cite supporting authority; and the failure to do so results in waiver. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Illinois Supreme Court Rule 341(h)(7) provides that an appellant’s brief must “contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” (Emphasis added.) Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). The purpose of this rule is to provide “[a] court of review” with “clearly defined” issues and cites to “pertinent authority.” People v. Trimble, 181 Ill. App. 3d 355, 356, 537 N.E.2d 363, 130 Ill. Dec. 296 (1989) (discussing the provisions of former Illinois Supreme Court Rule 341(e)(7), which is now numbered as Illinois Supreme Court Rule 341(h)(7), and its importance to the appellate court). A reviewing court “is not a depository in which the appellant may dump the burden of argument and research.” Trimble, 181 Ill. App. 3d at 356. The appellate [**31] court stated in Trimble:

“To ignore such a rule by addressing the case on the merits would require this court to be an advocate for, as well as the judge of the correctness of, defendant’s position on the issues he raises. On the other hand, strict compliance with the rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is essential to an accurate determination of the issues raised on appeal.” Trimble, 181 Ill. App. 3d at 356-57.

[*P71] In the instant case, plaintiff failed to cite a single substantive case in support of her argument that the trial court improperly granted summary judgment in favor of defendant. The cases that plaintiff cites in the argument section of her brief merely establish general principles of law regarding summary judgment and a products liability action. In Part A of the argument section of her brief which discusses how the evidence justifies an inference of probability that defendant was the manufacturer of the subject snow tube, plaintiff cites only Black’s Law Dictionary and fails to cite any precedent in furtherance of her argument. Furthermore, in Part B of the argument section of her brief, plaintiff fails to cite any legal authority supporting her argument [**32] that she can prove a prima facie case without the defective tube since the defect at issue was known to defendant.9 Accordingly, because plaintiff has failed to comply with Illinois Supreme Court Rule 341(h)(7), the plaintiff has waived consideration of her claim that the trial court improperly granted summary judgment in favor of defendant.

9 Plaintiff mentions Wiesner v. Fontaine Trailer Co., No. 06-CV-6239, 2010 U.S. Dist. LEXIS 81672, 2010 WL 3023398 (N.D. Ill. 2010), an unreported case discussed in defendant’s motion for summary judgment. However, we will not cite an unreported case. State Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st) 140447, ¶ 101, 391 Ill. Dec. 170, 30 N.E.3d 440 (“We will not cite an unreported case.”); Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, 2012 IL App (1st) 111533, ¶ 15, 964 N.E.2d 1225, 358 Ill. Dec. 203 (“an unreported case” is “not binding on any court”); People v. Moore, 243 Ill. App. 3d 583, 584, 611 N.E.2d 1246, 183 Ill. Dec. 598 (1993) (“the decision was unreported and of no precedential value”). “Unreported decisions have no precedential value, and this is even more true for decisions from foreign jurisdictions.” American Family Mutual Insurance Co. v. Plunkett, 2014 IL App (1st) 131631 ¶ 38, 383 Ill. Dec. 393, 14 N.E.3d 676; Burnette v. Stroger, 389 Ill. App. 3d 321, 329, 905 N.E.2d 939, 329 Ill. Dec. 101 (2009); West American Insurance Co. v. J.R. Construction Co., 334 Ill. App. 3d 75, 82, 777 N.E.2d 610, 267 Ill. Dec. 807 (2002) (a “foreign, unreported decision” is of no precedential value”). Specifically, with respect to unpublished federal cases, this court has held that they do not carry any authority before an Illinois court. Lyons v. Ryan, 324 Ill. App. 3d 1094, 1107 n.11, 756 N.E.2d 396, 258 Ill. Dec. 414 (2001) (“unreported federal court orders” are not “any kind of authority before an Illinois court”); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093, 608 N.E.2d 54, 180 Ill. Dec. 932 (1992) (“we decline” to follow “an unreported Federal district court decision”).

[*P72] V. No Prima Facie Case

[*P73] However, even if plaintiff did not waive her claims regarding summary judgment, [**33] plaintiff still could not prove a prima facie case without the allegedly defective snow tube. The facts in Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 216 N.E.2d 244 (1966), cited by defendant, are similar to the present case. In Shramek, the plaintiff was injured when the automobile in which he was riding crashed after one of the tires suffered a blowout. Shramek, 69 Ill. App. 2d at 74. He filed both a negligence claim and a breach of implied warranty claim against the tire and auto manufacturers claiming a defect was in the tire at the time it left the control of the manufacturer or seller. Shramek, 69 Ill. App. 2d at 75. The tire, however, was never examined for a defect and could not be located. Shramek, 69 Ill. App. 2d at 78. The trial court granted the automobile and tire manufacturers’ motions for summary judgment, and this court affirmed. Shramek, 69 Ill. App. 2d at 77. The appellate court held that summary judgment was required because the record conclusively demonstrated that the plaintiff could not prove, either by direct or circumstantial evidence, that the accident was caused by a defective tire. Shramek, 69 Ill. App. 2d at 77. The court noted that the mere occurrence of a blowout does not establish a manufacturer’s negligence or that the tire was defective, since blowouts can be attributed to a myriad of causes. Shramek, 69 Ill. App. 2d at 78. The court stated:

“[A]side from a superficial inspection of the damaged car [**34] and tire after the accident by plaintiff and his cousin, the tire in question was never subjected to an examination which would reveal that the blowout was due to a pre-existing defect. Thus, without any examination of the tire designed to elicit the cause of the blowout and without the tire itself or any hope or expectation for its recovery, plaintiff could never prove, directly or inferentially, a case of negligence, breach of warranty or strict liability.” Shramek, 69 Ill. App. 2d at 78.

[*P74] The reasoning in Shramek has been cited with approval and applied in other cases (E.g., Scott v. Fruehauf Corp. 602 F. Supp. 207, 209 (S.D. Ill. 1985); Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 874, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992); Phillips v. U.S. Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987) (discussing and applying Shramek)). In Scott, the plaintiff sued a tire rim manufacturer and distributor, alleging he was injured while working on a tire rim. Scott, 602 F. Supp. at 208. As in Shramek, the allegedly defective product was unavailable. Scott, 602 F. Supp. at 209. The court held that, because the plaintiff could not produce the rim, he “could never prove his case” and, therefore, summary judgment was proper. Scott, 602 F. Supp. at 209. The Scott case held this, even though there were photographs of the rim. Scott, 602 F. Supp. at 209. However, the court found that even photographs were insufficient because the rim had never been examined by a qualified expert and was never made available to the defendant. Scott, 602 F. Supp. at 209. In the case at [**35] bar, plaintiff does not even have photographs of the tube, and the tube was certainly never examined by an expert or made available to defendant. Thus, pursuant to the reasoning of both Shramek and Scott, summary judgment was warranted.

[*P75] Similarly, in Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 872-73, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992), the plaintiff brought a negligence and product liability action against defendant for improper installation of a tire and inner tube. The inner tube was unavailable and the plaintiff’s expert never examined the inner tube or took photographs of it. Sanchez, 237 Ill. App. 3d at 873. In affirming summary judgment, the appellate court held that the cause of the incident could only be left to speculation because the expert’s testimony indicated nothing more than a mere possibility that the inner tube was improperly installed. Sanchez, 237 Ill. App. 3d at 874; see also Scott, 602 F. Supp. at 209 (“the very fact that other factors could have caused the injury warranted granting of summary judgment motions since without the alleged[ly] defective product the plaintiff could never prove up his case”). Similarly, in the case at bar, without the tube, the cause of the incident could only be left to speculation.

[*P76] Lastly, in Phillips v. United States Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987), the plaintiff brought a negligence and strict products liability claim against defendant for personal injuries he sustained [**36] when he fell from a scaffold manufactured by the defendant. As in Shramek, the plaintiff failed to produce the allegedly defective product involved in the accident or any photographs of it. Phillips, 163 Ill. App. 3d at 415. And as in Scott, the plaintiff failed to provide any expert testimony regarding the alleged defect in the product. Phillips, 163 Ill. App. 3d at 415. In affirming summary judgment, this court held that the plaintiff failed to present facts to support the elements of his products liability claims based in negligence and strict liability. Phillips, 163 Ill. App. 3d at 418. This court reasoned that, because the scaffold was never examined for the presence of preexisting defects, the plaintiff “could never prove, either by direct or circumstantial evidence, that the accident was caused by a defective scaffold, since he did not and could not produce the scaffold.” Phillips, 163 Ill. App. 3d at 418.

[*P77] Similar to the plaintiff in Phillips, plaintiff in this case did not and cannot produce the allegedly defective product involved in her accident. The subject snow tube was never retrieved or examined for defects. Plaintiff also has not produced any photographs of the snow tube itself or provided testimony by an eyewitness to the accident or its aftermath, other than plaintiff herself. Plaintiff testified [**37] that all of the photographs she took on the day of the accident were of different snow tubes in use at Villa Olivia and not of the tube involved in her accident. Plaintiff testified that the last time she saw the tube was when she left it with the Villa Olivia employees when she walked inside with the paramedic to report the accident. Plaintiff also testified that her basis for believing that defendant manufactured the tube in her accident was that she saw a different tube that had writing on it that said defendant’s name. She testified that a photograph of a snow tube used by her son showed a red colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against defendant.

[*P78] Therefore, for the reasons stated above, we cannot find that the trial court erred in granting summary judgment in favor of defendant. [**38] Outboard Marine Corp., 154 Ill. 2d at 102 (discussing when summary judgment should be granted).

[*P79] CONCLUSION

[*P80] On appeal, plaintiff argues that the trial erred in granting summary judgment because there is a genuine issue of material fact as to whether defendant was the manufacturer of the snow tube that injured her. For the foregoing reasons, we conclude that plaintiff failed to present sufficient evidence to raise a genuine issue of material fact as to the manufacturer of the snow tube and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P81] Affirmed.


Jimenez et al., v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546; 188 Cal. Rptr. 3d 228; 2015 Cal. App. LEXIS 494

Jimenez et al., v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546; 188 Cal. Rptr. 3d 228; 2015 Cal. App. LEXIS 494

Etelvina Jimenez et al., Plaintiffs and Appellants, v. 24 Hour Fitness USA, Inc., Defendant and Respondent.

C071959

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

237 Cal. App. 4th 546; 188 Cal. Rptr. 3d 228; 2015 Cal. App. LEXIS 494

June 9, 2015, Opinion Filed

SUBSEQUENT HISTORY: Time for Granting or Denying Review Extended Jimenez v. 24 Hour Fitness USA, Inc., 2015 Cal. LEXIS 8476 (Cal., Aug. 10, 2015)

Review denied by, Request denied by Jimenez v. 24 Hour Fitness United States, 2015 Cal. LEXIS 9252 (Cal., Sept. 23, 2015)

PRIOR HISTORY: [***1] APPEAL from a judgment of the Superior Court of Sacramento County, No. 34201100096852-CUPOGDS, David I. Brown, Judge.

DISPOSITION: Reversed.

COUNSEL: Moseley Collins III and Thomas G. Minder for Plaintiffs and Appellants.

Bruce L. Davis and Jack C. Nick for Defendant and Respondent.

JUDGES: Opinion by Murray, J., with Blease, Acting P. J., and Hull, J., concurring.

OPINION BY: Murray, J.

OPINION

[**230] MURRAY, J.–Plaintiffs Etelvina and Pedro Jimenez appeal from summary judgment in favor of defendant 24 Hour Fitness USA, Inc. (24 Hour), in plaintiffs’ negligence action stemming from a catastrophic injury sustained by Etelvina while using a treadmill at 24 Hour. Plaintiffs asserted that 24 Hour was grossly negligent in setting up the treadmill in a manner that violated the manufacturer’s safety instructions. 24 Hour moved for summary judgment, contending that it was not liable as a matter of law because Etelvina signed a liability release when she joined the gym. The trial court agreed and granted summary judgment.

On appeal, plaintiffs contend that the trial court erred in granting summary judgment in 24 Hour’s favor because (1) the liability release is not enforceable against plaintiffs’ claim of gross negligence; (2) the release was obtained [***2] by fraud and misrepresentation; and (3) the release only encompasses reasonably foreseeable risks and Etelvina’s injury was not reasonably foreseeable at the time she signed the release.

The third contention is forfeited for purposes of this appeal, but we agree with the first two contentions. Accordingly, we reverse. [*549]

FACTUAL AND PROCEDURAL BACKGROUND

Undisputed Facts1

1 The facts are taken from plaintiffs’ and 24 Hour’s separate statements of fact. The only fact that was specifically disputed was 24 Hour’s claim that plaintiffs did not identify “any statutory violation committed by 24 Hour.” Plaintiffs disputed this assertion, responding that Civil Code section 1668 precludes releases obtained through fraud. 24 Hour did not dispute any of plaintiffs’ facts but did object to most of them on various evidentiary grounds, and the trial court overruled these objections. The court’s ruling on defendant’s objections is not challenged on appeal. Accordingly, plaintiffs’ separate statement of facts is undisputed for purposes of our review on appeal. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal. Rptr. 2d 352, 8 P.3d 1089] [“On [HN1] appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers [***3] except that to which objections have been made and sustained.”].)

Plaintiffs filed a complaint against 24 Hour stating causes of action for premises [**231] liability, general negligence, and loss of consortium. The action arose out of injuries Etelvina sustained on January 16, 2011, while exercising at a 24 Hour facility in Sacramento, California. Etelvina’s expert opined that she fell backwards off of a moving treadmill and sustained severe head injuries when she hit her head on the exposed steel foot of a leg exercise machine that 24 Hour placed approximately three feet 10 inches behind the treadmill.

24 Hour filed an answer to the complaint generally denying the allegations and claiming several affirmative defenses, including the defense that plaintiffs’ claims were barred by a liability release.

At the time of her injuries, Etelvina was a member of 24 Hour. She joined 24 Hour approximately two years before the day she sustained her injury, and thereafter, she used the facilities regularly several times per week. On the day she joined, she was directed to the membership manager, Justin Wilbourn. She was then required to sign a membership agreement. However, Etelvina could not read or speak [***4] English, and Wilbourn did not speak Spanish. Wilbourn knew Etelvina did not read or speak English. Nevertheless, he did not call a Spanish-speaking employee to help him translate. Instead, he pointed to his computer screen to a figure, $24.99, indicating the membership fee, and made pumping motions with his arms like he was exercising. Etelvina understood the numbers, which are identical in Spanish, and she understood Wilbourn’s physical gestures to mean that if she paid that amount, she could use the facility. She could not read anything else. Wilbourn then pointed to the lines in the agreement for Etelvina to sign.

The membership agreement contained a liability release provision, which provided: “Using the 24 Hour USA, Inc. (24 Hour) facilities involves the risk [*550] of injury to you or your guest, whether you or someone else causes it. Specific risks vary from one activity to another and the risks range from minor injuries to major injuries, such as catastrophic injuries including death. In consideration of your participation in the activities offered by 24 Hour, you understand and voluntarily accept this risk and agree that 24 Hour, its officers, directors, employees, volunteers, agents [***5] and independent contractors will not be liable for any injury, including, without limitation, personal, bodily, or mental injury, economic loss or any damage to you, your spouse, guests, unborn child, or relatives resulting from the negligence of 24 Hour or anyone on 24 Hour’s behalf or anyone using the facilities whether related to exercise or not. … By signing below, you acknowledge and agree that you have read the foregoing and know of the nature of the activities at 24 Hour and you agree to all the terms on pages 1 through 4 of this agreement and acknowledge that you have received a copy of it and the membership policies.”

Wilbourn did not point out the release to Etelvina or make any other indications about the scope of the agreement aside from his gestures mimicking exercise and the fee. Etelvina believed she signed an agreement only to pay the monthly fee of [**232] $24.99. In her declaration supporting plaintiffs’ separate statement, Etelvina declared that “Wilbourn misrepresented the agreement and deceived [her]. He hid from [her] that she was also signing a release of liability.” Etelvina also declared that Wilbourn “misled” and “defrauded” her, and she relied on Wilbourn’s “indication [***6] of the meaning of the contract.”2

2 Plaintiffs also submitted a declaration by Etelvina’s sister, Emelia Villaseñor, who declared that she went through the same process at 24 Hour and was similarly misled as to the contents of the membership agreement.

Etelvina has no memory of the incident leading to her injuries. However, Laurence H. Neuman, an expert on civil engineering and accident reconstruction, investigated the incident. In the course of his investigation, Neuman determined that the 24 Hour location in question had 21 treadmill machines. In the area where Etelvina fell, “the distance directly behind the running belt of the treadmill to the closest piece of equipment was 3 feet 10 inches.” Neuman determined that other treadmills in the gym were placed with an even shorter distance between the running belts and other gym equipment, approximately three feet. These measurements reflect the same conditions present at the time of Etelvina’s injuries.

However, the treadmill manufacturer’s owner’s manual instructed in a section titled “Treadmill Safety Features”: “[I]t is important to keep the area around the treadmill open and free from encumbrances such as other equipment. The minimum space [***7] requirement needed for user safety and proper [*551] maintenance is three feet wide by six feet deep … directly behind the running belt.” (Italics added.) The manufacturer’s assembly guide for the treadmill also says to provide a minimum six-foot clearance behind the treadmill for “user safety” and maintenance. Neuman determined that none of the 21 treadmills at this 24 Hour location had a six-foot safety clearance. Neuman concluded that 24 Hour’s act of placing other exercise equipment within the six-foot safety zone increased the risk of injury to persons using the treadmills.

Dr. James P. Dickens assessed Etelvina’s injuries, her medical records, and Neuman’s findings, and he determined that Etelvina fell backward while using the treadmill and “struck her head, fracturing the right occipital bone and right temporal bone.” Dr. Dickens noted that while the gym floor is covered with shock-absorbing material, there was a leg exercise machine with an exposed steel foot that was approximately three feet 10 inches behind the treadmill’s moving belt. Dr. Dickens opined that it was unlikely that Etelvina would have suffered the skull fractures had her head landed on the shock-absorbing floor [***8] coverings behind the treadmill and she likely hit her head on the leg machine. Additionally, Barton Waldon, a certified personal fitness trainer, opined that it is foreseeable that treadmill users occasionally trip, stumble, or fall off treadmills. Waldon declared that “[f]or the safety of the users and in order to minimize injury, it is important that a safety zone behind the treadmill be kept clear of other machines and obstacles so that users falling off or pushed off the rear of the treadmill do not strike such objects.” Accordingly, Waldon opined that 24 Hour’s act of placing exercise equipment inside the safety zone “greatly increased the risk of injury to [Etelvina].”

In his deposition, Wilbourn, the membership manager for 24 Hour, said that he did not remember meeting Etelvina, although he identified himself as the employee [**233] who assisted her based on his signature on her membership agreement. Wilbourn testified that typically, when he encountered a potential customer who only spoke Spanish, his habit and custom was to have a Spanish-speaking employee handle the signup for that potential customer.

Motion for Summary Judgment

24 Hour filed a motion for summary judgment, or in the alternative, [***9] summary adjudication, asserting that plaintiffs’ claims were barred by the release. As for the loss of consortium cause of action, 24 Hour argued the claim was barred because it was derivative of plaintiffs’ negligence and premises liability causes of action. Plaintiffs opposed the motion, contending that the release was invalid because 24 Hour was grossly negligent and because 24 Hour obtained the release through fraud. However, plaintiffs did not specifically raise the argument that the release did not encompass [*552] Etelvina’s injury because it was not reasonably foreseeable to her at the time she signed the release that 24 Hour would intentionally increase her risk of injury.

Plaintiffs argued that due to 24 Hour’s fraud in obtaining Etelvina’s signature on the release, the release was ineffective. Plaintiffs further argued that the holding in Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 [21 Cal. Rptr. 2d 245] (Randas), does not apply here, because in this case, unlike in Randas, there was overreaching and fraud. The court inquired how Etelvina could know that Wilbourn misrepresented the nature of the release if she could not understand English. Plaintiffs’ counsel replied that Wilbourn communicated with her about the purported contents of the membership [***10] agreement through gesturing and pointing at the numbers on the computer screen. The court then inquired about the gross negligence exception to enforcing releases, pointing out that plaintiffs did not specifically allege a cause of action for gross negligence in their complaint. Plaintiffs responded that under California law, there is not a distinct cause of action for gross negligence and alleging general negligence suffices.3 Plaintiffs also contended that the question of gross negligence is a question of fact to be resolved by the jury rather than a matter of law to be resolved on summary judgment. The court questioned whether there was an industry standard on the appropriate safety clearance behind treadmills. Plaintiffs contended that the industry standard is evidenced in the manufacturer’s directions and Waldon’s declaration. The court expressed concern that Waldon’s “assumption is predicated upon the fact that she was on the treadmill. If you assume she was not on the treadmill, and we don’t have any tissue or hair or blood on a piece of equipment that would allow us to pinpoint where it is, we can’t really know what was happening at the time of the accident.” The court indicated [***11] that while that circumstance did not necessarily mean defendant should prevail, it was something for the court to consider. Plaintiffs’ counsel responded that the court identified a factual dispute in the case for a jury to decide.

3 24 Hour does not make a contrary argument on appeal. We agree with plaintiffs that [HN2] California does not recognize a distinct common law cause of action for gross negligence apart from negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 779-780 [62 Cal. Rptr. 3d 527, 161 P.3d 1095] (Santa Barbara); Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 329-330 [242 Cal. Rptr. 784].) As a degree of negligence, “[g]ross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [122 Cal. Rptr. 3d 22] (Rosencrans).)

[**234] During oral argument in the trial court, 24 Hour focused on the question of whether there was evidence of gross negligence, claiming it was impossible to detect the cause of plaintiffs’ injuries because she could not remember what happened. The trial court observed that this might be “a question of [*553] proof at trial.” The court then asked defense counsel why Etelvina’s testimony that Wilbourn misrepresented the content of the release would not create a factual issue for trial. Defense counsel responded that there was no evidence of “an affirmative act to deceive.” The court took the matter [***12] under submission.

The trial court granted 24 Hour’s motion. In its ruling, the court wrote that plaintiffs failed to present any evidence that Wilbourn “made any affirmative representations that led [Etelvina] to believe she was signing something other than what the agreement, on its face, purported to be.” The court further wrote that “[t]he fact that [Etelvina] elected to sign the agreement without understanding all of its terms cannot be considered the fault of [24 Hour].” With respect to the gross negligence argument, the court was persuaded by 24 Hour’s argument that, as a matter of law, a space of three to four feet as opposed to the recommended six-foot safety zone cannot constitute gross negligence, because “it does not reflect an ‘extreme departure from the ordinary standard of conduct.'” The court reasoned that 24 Hour’s “placement of the treadmill constitutes at most, ordinary negligence.” Consequently, the court ruled that plaintiffs “failed to demonstrate a triable issue of material fact with regard to the enforceability of the release.”

DISCUSSION

I. Standards of Review

[HN3] “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving [***13] party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal. Rptr. 2d 370, 28 P.3d 116] (Merrill), citing Code Civ. Proc., § 437c, subd. (c).) “[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal. Rptr. 2d 841, 24 P.3d 493], fn. omitted (Aguilar).) If a defendant shows that one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action, the burden shifts to the plaintiff to show that a triable issue exists as to one or more material facts. (Doe v. California Lutheran High School Assn. (2009) 170 Cal.App.4th 828, 834 [88 Cal. Rptr. 3d 475], citing Aguilar, supra, 25 Cal.4th at p. 849.) If the trial court finds that no triable issue of fact exists, it then has the duty to determine the issue of law. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [4 Cal. Rptr. 3d 785].)

[HN4] On appeal, we review the trial court’s decision de novo. (Merrill, supra, 26 Cal.4th at p. 476.) We independently review the papers supporting and [*554] opposing the motion, considering all the evidence offered in connection with the motion and any inferences that the evidence reasonably supports, applying the same rules and standards as the trial court. (Ibid.) We view the evidence in the light most favorable to plaintiffs as the losing parties. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 [107 Cal. Rptr. 2d 617, 23 P.3d 1143].) In liberally construing the evidence [**235] in favor of the party opposing the motion, we resolve [***14] all doubts concerning the evidence in favor of the opponent. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 [30 Cal. Rptr. 3d 797, 115 P.3d 77].)

II. Gross Negligence

A. The Parties’ Contentions

24 Hour contends it met its burden of showing that plaintiffs could not establish the duty element of their negligence cause of action by producing a valid release and the burden thus shifted to plaintiffs to show a triable issue of material fact. (Cf. Aguilar, supra, 25 Cal.4th at p. 849.) 24 Hour contends that plaintiffs failed to meet this burden and, accordingly, summary judgment was appropriate. Conversely, plaintiffs contend that there are triable issues of fact regarding the question of whether 24 Hour’s conduct constituted gross negligence, which would preclude 24 Hour’s reliance on the release to absolve it from liability. 24 Hour responds that the question of gross negligence was properly decided as a matter of law because plaintiffs’ allegation of gross negligence was unsupported in their summary judgment pleadings. Viewing the evidence in a light most favorable to plaintiffs, liberally construing that evidence and resolving all doubts in their favor, we disagree with 24 Hour.

B. Analysis

(1) ” [HN5] While often referred to as a defense, a release of future liability is more appropriately characterized as an express [***15] assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case. ‘”… The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” [Citation.]'” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [183 Cal. Rptr. 3d 234] (Eriksson II).) In a summary judgment motion, the defendant bears the burden of establishing the validity of a release “as applied to the case at hand.” (Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58; see Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120 Cal. Rptr. 3d 90] (Eriksson I).)

[HN6] A release cannot absolve a party from liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 750-751, 776-777.) In Santa Barbara, our [*555] high court reasoned that “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, quoting Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871 [118 P.2d 465].) A liability release, “to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.” (Santa Barbara, at p. 751.)

(2) The issue we must determine here is whether, with all facts and inferences construed in plaintiffs’ favor, the conduct shown by plaintiffs’ evidence could be found to constitute gross negligence. If so, then it is a question of fact for the jury to determine whether the [***16] release in this case was unenforceable for that reason. As our high court has noted, [HN7] whether conduct constitutes gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence. (Santa Barbara, supra, 41 Cal.4th at pp. 767, 781 [reasoning that whether the evidence showed lack of care sufficient to constitute gross negligence was a triable issue of fact [**236] in that case].) The Courts of Appeal have followed suit, holding that generally, [HN8] it is a triable issue of fact whether a defendant’s lack of care constitutes gross negligence. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal. Rptr. 356] (Decker).) And when reviewing summary judgment based on the absence of a triable issue of fact as to gross negligence, we must resolve every reasonable doubt in favor of the plaintiffs. (Rosencrans, supra, 192 Cal.App.4th at p. 1088.)

“‘Ordinary negligence’–an unintentional tort–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. [Citation.] [¶] [HN9] ‘Gross 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 pp. 753-754; see Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186 [7 Cal. Rptr. 3d 552, 80 P.3d 656] (Eastburn).)

In [***17] Santa Barbara, a developmentally disabled child attended a special summer camp for disabled children run by the city. (Santa Barbara, supra, 41 Cal.4th at pp. 750-753.) Because she had frequent seizures, the child was assigned a counselor to monitor her closely. (Id. at p. 752.) However, when her counselor momentarily turned her attention away from the child, who was at that time swimming toward the side of the pool, the child suffered a seizure and drowned. (Id. at p. 753.) The city contended that a release signed by the child’s mother had absolved the city of liability for any negligence. (Id. at pp. 750, 753.) On appeal, our high court held that the family’s gross [*556] negligence claim was not barred by the release because an agreement purporting to protect the releasee from liability for conduct rising to the level of gross negligence is against public policy. (Id. at pp. 770-777.)

In Rosencrans, where the court concluded there was a question of fact regarding gross negligence, the showing was similar to the showing in the instant case. In that case, a motorcyclist was injured during motocross practice.4 (Rosencrans, supra, 192 Cal.App.4th at pp. 1077, 1083.) The plaintiffs presented two pieces of evidence in opposition to the defendant’s summary judgment motion, indicating that there was an industry standard to provide caution flaggers [***18] on motocross tracks: (1) the “‘Brett Downey Safety Foundation Instructional Manual for Caution Flaggers,'” which provided that caution flaggers should be at their stations at all times while motorcyclists are on the course (id. at p. 1086) and (2) a motocross safety expert’s declaration that “the common practice for motocross tracks is to have caution flaggers at their assigned posts at all times …” (ibid.). The court held that because “it is standard practice in the industry to have caution flaggers on their platforms at all times … ,” the defendant’s failure to provide a caution flagger raised a triable issue of material fact on the question of gross negligence. (Id. at pp. 1081, 1086-1087.)

4 “Motocross is a sport in which people ride motorcycles and perform jumps off of ramps, while in a setting filled with dust and other people on motorcycles.” (Rosencrans, supra, 192 Cal.App.4th at p. 1083.)

[**237] 24 Hour contends that there was no industry standard regarding a treadmill safety zone. They offer no cases or examples of any industry standard that violates a manufacturer’s safety directions. Indeed, it could be reasonably inferred that it is unlikely an industry would develop a standard that violates the express safety directions of the manufacturer. Plaintiffs, on the other [***19] hand, presented three pieces of evidence indicating a possible industry standard on treadmill safety zones: (1) the treadmill manufacturer’s owner’s manual instructed in its “Treadmill Safety Features” section that “[t]he minimum space requirement needed for user safety and proper maintenance is three feet wide by six feet deep” (italics added); (2) the manufacturer’s assembly guide for the treadmill also instructs that the treadmill requires a minimum six-foot-deep clearance behind it “for user safety and proper maintenance” (italics added); and (3) plaintiffs’ expert, Waldon, declared that “[f]or the safety of the users and in order to minimize injury, it is important that a safety zone behind the treadmill be kept clear of other machines and obstacles so that users falling off or pushed off the rear of the treadmill do not strike such objects,” and he opined that 24 Hour’s act of placing other exercise equipment inside the safety zone “greatly increased the risk of injury to [Etelvina].” This evidence is similar to the evidence presented in Rosencrans. While Waldon did not expressly use the words “common practice” or [*557] “industry standard,” such is an inference that his declaration reasonably [***20] supports, particularly when viewed in tandem with the manufacturer’s safety directions.

(3) In our view, based on the evidence plaintiffs presented, a jury could reasonably find that (1) it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills, based on the owner’s manual, assembly guide, and Waldon’s declaration as an expert; (2) 24 Hour did not provide this minimum six-foot safety zone, as declared by Neuman; and (3) the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of conduct, as implied in Waldon’s declaration. Accordingly, plaintiffs created a triable issue of fact as to whether the failure to provide the minimum six-foot safety zone constituted an extreme departure from the ordinary standard of conduct.

While the issue of whether there has been gross negligence is generally a triable issue of fact, we recognize that such is not always the case. (See Decker, supra, 209 Cal.App.3d at p. 358.) For example, in a recent case involving 24 Hour, the Court of Appeal affirmed summary judgment grounded in part on the trial court’s determination that there was no triable issue of fact as to gross negligence. (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 639 [184 Cal. Rptr. 3d 155] (Grebing).) The contrast to our [***21] case supports our conclusion that, looking at the evidence in a light most favorable to plaintiffs, there is a triable issue of fact as to gross negligence in this case.

In Grebing, the plaintiff, who had twice signed 24 Hour’s release, was injured using a low row machine, when a clip failed causing a handlebar to break free from the cable and strike him in the forehead. (Grebing, supra, 234 Cal.App.4th at p. 634.) The evidence disclosed that the clip was the wrong clip, broken, or not working for the machine on which the plaintiff was exercising. (Id. at p. 635.) Some machines in the facility were missing clips and apparently members moved clips to other machines. Fifteen minutes before the plaintiff’s injury, another member reported [**238] that a different machine had a crooked clip. (Ibid.) The court held that to the extent the plaintiff was claiming 24 Hour should have inspected and replaced broken or improper clips on all machines within the 15 minutes after the other member’s complaint, that claim was insufficient to raise a triable issue of gross negligence. (Id. at p. 639.) Further, the court noted that “it is undisputed that 24 Hour took several measures to ensure that its exercise equipment and facility were well maintained. For example, it hired [***22] a facilities technician whose job was to conduct a daily inspection of the facility and perform preventative maintenance. If the facilities technician was unavailable, 24 Hour had a practice of requiring other staff members to conduct the inspection and perform any required maintenance.” (Ibid.) The Grebing court [*558] concluded, “In view of these measures, 24 Hour’s conduct cannot reasonably be regarded as demonstrating a want of even scant care or an extreme departure from the ordinary standard of conduct.” (Ibid.)

Here, unlike in Grebing where there was no notice, 24 Hour knew it was violating the manufacturer’s express safety directions when it deliberately arranged the gym equipment without providing a six-foot safety zone for the treadmills. It can be inferred that 24 Hour did so for the purpose of placing more machines into its facility to accommodate more members to make more money. And unlike in Grebing, where 24 Hour acted reasonably by conducting daily equipment inspections, there were no mitigation measures that would have prevented the injury plaintiffs alleged occurred here. We are not persuaded by 24 Hour’s argument that because it provided shock-absorbing flooring materials, [***23] it exhibited “some care” and a jury would be precluded from finding gross negligence. A shock-absorbing floor makes little difference when it is covered with gym equipment upon which members could fall and severely injure themselves. Thus, we cannot agree that this purported mitigation measure precludes a jury finding of gross negligence.

In reaching our conclusion, we also reject 24 Hour’s argument, as adopted by the trial court, that “the provision of three to four feet of space as opposed to the recommended six feet cannot, as a matter of law, constitute gross negligence as it does not reflect ‘an extreme departure from the ordinary standard of conduct.'” The misdirected focus on the two-to-three-foot difference between 24 Hour’s spacing and the recommended minimum spacing impliedly suggests that such difference was negligible and not “an extreme departure.” However, when one thinks of the minimum safety zone recommended by the treadmill manufacturer in terms of the height of adult human beings and the high likelihood of a person falling off a treadmill impacting nearby equipment as close as three feet, it seems clear that the reduced zone established by 24 Hour here can hardly be [***24] considered a “safety” zone at all. Accordingly, it strikes us that a departure of two to three feet from the recommended minimum six-foot safety zone makes a great difference under these circumstances. Without any expert testimony indicating otherwise and in light of plaintiffs’ expert’s declaration corroborating the manufacturer’s directions and the financial motivation that can be inferred from the evidence, we cannot agree that as a matter of law, the spacing of the machines demonstrates at least scant care and is not an extreme departure from the ordinary standard of conduct.

24 Hour contends that if the facts in several cases it cites do not amount to gross negligence, then the facts in this case certainly do not. In our view, 24 Hour’s cited cases are distinguishable. [*559] [**239]

24 Hour cites Decker as a comparable case on gross negligence. In Decker, a surfer became entangled in the tether of a submerged lobster trap and drowned after the city pursued an antiquated surf rescue method, the “lifeline rescue method.” (Decker, supra, 209 Cal.App.3d at pp. 352-353, 360.) There was evidence that the rescue personnel arrived promptly and made diligent efforts to attempt to rescue the surfer both with the sheriff’s dive team and with a helicopter, [***25] but the dive team used a rescue method disfavored for surf rescues. (Id. at pp. 360-361, 363.) The court reasoned that this evidence “could support a finding that use of the lifeline rescue method is a disfavored surf rescue method and would not be used by an experienced, trained surf rescuer but it does not support a finding the sheriff’s dive team was grossly negligent for having used this method given their lack of training or experience in surf rescue.” (Id. at p. 360, italics added.) The Decker court also noted that the plaintiff did not contest the validity of the sheriff’s first rescue attempt with the helicopter, which also failed. (Id. at pp. 360-361.) The failure to train for and use a specialized rescue method during an otherwise diligent rescue effort that included another undisputed rescue method is very different from 24 Hour’s failure to follow the treadmill manufacturer’s explicit directions to maintain a minimum six-foot safety zone. The conduct in Decker was, at best, passive negligence by people who did not know any better and did not create or even increase the risk of injury whereas in our case defendant’s conduct actively created or increased the risk of injury to treadmill users by deliberately setting up the [***26] equipment in a dangerous manner.

In DeVito v. State of California (1988) 202 Cal.App.3d 264 [248 Cal. Rptr. 330] (DeVito), another case upon which 24 Hour relies, a hiker swung from a firehose hung over a tree limb in a mountain canyon on public land, lost her grip, and fell down a steep slope, sustaining injuries. The appellate court affirmed dismissal of her complaint against the state on demurrer, primarily focusing on a statute, Government Code section 831.7, which provides “a public entity is not liable to ‘any person who participates in a hazardous recreational activity … for any … injury … arising out of that … activity.'” (DeVito, at pp. 267, 270.) The court noted that under the statute, “‘tree rope swinging'” is listed as one such hazardous recreational activity, and the primary issue on appeal was one of interpreting this statute. (Ibid.) The court, in a single, short paragraph, only briefly discussed the plaintiff’s secondary argument that the state engaged in gross negligence, concluding in summary fashion that no facts alleged in the complaint supported the allegation of gross negligence. (Id. at p. 272.)

DeVito is distinguishable on several bases. First, in this case, plaintiffs here did allege facts in their summary judgment opposition which support a finding of gross negligence, as discussed [***27] ante. Second, as in Decker, the plaintiff in DeVito did not allege facts indicating that the defendant actively [*560] created or increased the risk of harm. Instead, the plaintiff alleged that the state failed to “‘guard or warn of [a] known dangerous condition,'” which would not ordinarily rise to the level of gross negligence. (DeVito, supra, 202 Cal.App.3d at pp. 267, 272.) Third, and significantly, the court’s opinion in DeVito focused on the plaintiff’s failure “to guard or warn” argument because the gross negligence argument was barely raised and not supported in the plaintiff’s argument on appeal. (See id. at p. 272.) [**240] The court noted, “We could, but choose not to, ignore this contention since it is set forth in a single sentence of appellant’s opening brief, unsupported by either argument or authority.” (Id. at fn. 7.) Accordingly, DeVito provides little analysis of the gross negligence exception to liability releases and equally little support to 24 Hour’s position.

A third case cited by 24 Hour is even less helpful. Eastburn, supra, 31 Cal.4th 1175, involved a claim of gross negligence based on a 911 operator putting the plaintiff on hold. An injured child and her parents sued, contending that the child suffered injuries because of the failure to provide prompt emergency response to [***28] the 911 call. (Id. at p. 1179.) Our high court affirmed the trial court’s finding that the plaintiffs would be unable to allege gross negligence to amend their defective complaint. (Id. at pp. 1179, 1185-1186.) On this point, the court wrote: “Plaintiffs’ briefs before the Court of Appeal made the additional allegation that the 911 dispatcher put them ‘on hold’ during their telephone conversation, but such conduct would hardly amount to gross negligence or bad faith. The case law has defined gross negligence as ‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘ [Citations.] Nothing in plaintiffs’ pleadings or appellate briefs points to such extreme conduct. Accordingly, the trial court properly sustained the demurrer without leave to amend.” (Id. at pp. 1185-1186.) Eastburn provides no factual analogue suitable for comparison to our case.

At oral argument, in addition to Grebing, supra, 234 Cal.App.4th 631, 24 Hour cited two other recent cases, which we also find distinguishable. In Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251 [179 Cal. Rptr. 3d 473], the plaintiff sued a sports club for a knee injury she sustained while attempting a kicking maneuver in a kickboxing class taught by a personal trainer. (Id. at pp. 254-255.) The trainer attempted to correct the plaintiff’s form by holding her kicking leg while he instructed [***29] her how to pivot her planted leg. (Ibid.) To support her claim that the defendant was grossly negligent, the plaintiff presented an expert declaration asserting that “an instructor should not touch the student, and instead should demonstrate and verbalize the maneuver and regress to an easier maneuver if the kick was too difficult for the student’s skills.” (Id. at p. 259.) On appeal from summary judgment in the defendant’s favor, the Court of Appeal reasoned that there was no triable issue of fact as to gross negligence because “[a] mere [*561] difference of opinion as to how a student should be instructed does not constitute evidence of gross negligence.” (Id. at p. 260.) This strikes us as a quintessential case of, at most, ordinary negligence. Unlike our case, there was no evidence that the defendant violated something like an industry standard, or manufacturer’s safety directions or otherwise made an extreme departure from the ordinary standard of conduct.

Defendant also cited Eriksson II, supra, 233 Cal.App.4th 708 at oral argument and ignored Eriksson I. In Eriksson I, the plaintiffs’ daughter was killed in an equestrian mishap. The Court of Appeal reviewed the trial court’s ruling granting summary judgment. Looking at the evidence [***30] in a light most favorable to the plaintiffs, the court concluded that the plaintiffs produced evidence sufficient to support a jury finding [**241] that a riding coach was grossly negligent in persuading the mother to allow her daughter to compete in an equestrian competition on a recently injured and unfit horse. (Eriksson I, supra, 191 Cal.App.4th at p. 857.) Following a remand for trial, the trial court entered judgment after the plaintiffs’ case-in-chief. The trial court found, based on the trial evidence, that the defendant’s conduct did not rise to the level of gross negligence. (Eriksson II, at p. 718.) On review, the Court of Appeal reasoned that because the defendant “established the validity of the release in the sense that it was binding and enforceable against [the plaintiffs],” the plaintiffs then had the burden of establishing that the defendant was grossly negligent in their case-in-chief at trial. (Id. at pp. 733-734.) Based on this procedural posture, the Eriksson II court applied a deferential standard of review (as opposed to the de novo review of the summary judgment in Eriksson I). The court “review[ed] the record to determine whether the evidence establishe[d], as a matter of law” that the defendant was grossly negligent. (Id. at p. 734, italics added.) The court determined [***31] that the plaintiffs failed to meet this burden at trial; however, it did not publish the portion of the opinion analyzing why the trial evidence failed to establish that the defendant was grossly negligent as a matter of law. (Ibid.) Accordingly, the case is of little utility to 24 Hour. In any event, due to the vastly different procedural posture and deferential standard of review, Eriksson II is distinguishable from our case. Indeed, the court in Eriksson I, citing Santa Barbara, noted that in the context of a summary judgment motion, the defendant bears the burden of establishing the validity of a release “as applied to the case at hand.” (Eriksson I, at p. 856, italics omitted, quoting Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58.) And as we have noted, our high court held that [HN10] a release from liability for gross negligence is invalid and unenforceable. (Santa Barbara, at pp. 750-751.) Thus, the opinion in Eriksson I is far more instructive where the Court of Appeal reversed the summary judgment in the defendant’s favor, reasoning that the plaintiffs showed there were material issues of fact as to whether the defendant was grossly negligent. (Eriksson I, at p. 857.) [*562]

In the trial court, 24 Hour did not explicitly dispute plaintiffs’ separate statement of facts in [***32] its moving papers; instead it opted to object to most of plaintiffs’ facts instead. On appeal, 24 Hour repeatedly disputed plaintiffs’ factual allegations in its brief. Specifically, defendant makes much of the fact that Etelvina cannot remember her fall, contending there is no “evidence that she actually fell backwards off of a moving treadmill.” However, this argument ignores plaintiffs’ expert declarations opining what likely happened to Etelvina based on her injuries, the location of her fall, and accident reconstruction. Although 24 Hour’s factual presentation in its briefing does not view the facts in the light most favorable to plaintiffs, we must do so. And while the experts’ opinions may or may not be credible at trial, this is an inherently factual issue for a jury to decide.5

5 24 Hour notes its objections to plaintiffs’ evidence and contends that these expert opinions are inadmissible. However, the trial court overruled 24 Hour’s evidentiary objections, and 24 Hour does not challenge this ruling on appeal. Accordingly, this argument is forfeited. (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1161-1162 [132 Cal. Rptr. 3d 886].)

[**242] We emphasize that “we are not passing judgment upon the merits of plaintiffs’ allegations; rather, we are viewing the allegations [***33] in the light most favorable to plaintiffs, as required by the law.” (Rosencrans, supra, 192 Cal.App.4th at p. 1089.) A jury may very well conclude that Etelvina was not injured in the manner alleged, that there was no industry standard on treadmill safety clearances, and that 24 Hour’s conduct did not rise to the level of gross negligence, but we are unwilling to reach these conclusions as a matter of law based on the record before us. In a case involving disputes of fact such as how and where Etelvina fell and whether there is an industry standard on treadmill safety zones, summary judgment is a “drastic remedy.” (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17 [9 Cal. Rptr. 3d 486].) Accordingly, we conclude that the trial court erred in ruling that plaintiffs did not present a triable issue of fact regarding whether 24 Hour engaged in gross negligence.

III. Fraud and Misrepresentation

A. The Parties’ Contentions

Plaintiffs contend that there are triable issues of fact as to whether 24 Hour obtained Etelvina’s signature on the liability release through fraud and misrepresentation, which would invalidate the release as to all of plaintiffs’ theories of recovery. In the trial court, plaintiffs presented the declarations of Etelvina and her sister, another 24 Hour member, testifying that before they [***34] signed their respective releases, the 24 Hour employees misrepresented and concealed the contents of the agreements. Specifically, Etelvina declared that [*563] Wilbourn gestured and pointed to represent that the agreement was to pay a certain amount of money per month for the gym membership and that she relied on that representation when she signed the release. However, the trial court ruled that plaintiffs presented “no evidence that Mr. Wilbourn made any affirmative representations that led [Etelvina] to believe she was signing something other than what the agreement, on its face, purported to be.”

On appeal, plaintiffs argue that 24 Hour failed to conclusively establish the enforceability of the release because they produced evidence that Wilbourn did not act in good faith and made affirmative misrepresentations to Etelvina through nonverbal gestures and by pointing to the monthly payment amount on his computer screen. Additionally, plaintiffs point out Wilbourn violated his own policy as the membership manager of referring Spanish-speaking customers to sign up with Spanish-speaking employees.6 24 Hour responds that it owed no duty to translate or explain the agreement to Etelvina, and [***35] the material facts alleged by plaintiffs do not raise a triable issue of whether Wilbourn misrepresented the contents of the agreement.

6 Plaintiffs repeatedly refer to this as a 24 Hour policy, but citations to Wilbourn’s deposition reveal that the questions directed toward him and his answers related to what he did and his habit and custom.

B. Analysis

(4) ” [HN11] A release may negate the duty element of a negligence action.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356 [129 Cal. Rptr. 2d 197].) As we have noted, in order to absolve itself of responsibility for any ordinary negligence, it was 24 Hour’s burden to establish the validity of the release “as [**243] applied to the case at hand.” (Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58; see Eriksson I, supra, 191 Cal.App.4th at p. 856.)

Generally, a person who signs an instrument may not avoid the impact of its terms on the ground that she failed to read it before signing. (Randas, supra, 17 Cal.App.4th at p. 163.) However, a release is invalid when it is procured by misrepresentation, overreaching, deception, or fraud. (Ibid.) “It has often been held that if the releaser was under a misapprehension, not due to his own neglect, as to the nature or scope of the release, and if this misapprehension was induced by the misconduct of the releasee, then the release, regardless of how comprehensively worded, is binding only to the extent actually [***36] intended by the releaser.” (Casey v. Proctor (1963) 59 Cal.2d 97, 103 [28 Cal. Rptr. 307, 378 P.2d 579], fn. omitted.) “In cases providing the opportunity for overreaching, the releasee has a duty to act in good faith and the releaser must have a full understanding of his legal rights. [Citations.] Furthermore, it is the province of the jury to determine whether the circumstances afforded the opportunity for overreaching, whether the releasee [*564] engaged in overreaching and whether the releaser was misled. [Citation.]” (Frusetta v. Hauben (1990) 217 Cal.App.3d 551, 558 [266 Cal. Rptr. 62] (Frusetta).) A “strong showing of misconduct” by the plaintiff is not necessary to demonstrate the existence of a triable issue of fact here; only a “‘slight showing'” is required. (Id. at pp. 559-560.)

(5) Here, if a jury were to be persuaded that Wilbourn made misrepresentations to Etelvina about the contents of the agreement by making nonverbal gestures indicating that what she was signing related only to being allowed to exercise if she paid the price on the computer screen, it would be entitled to find that Etelvina’s signature on the release was produced by misrepresentation and that the release is not enforceable against her. (See Seeger v. Odell (1941) 18 Cal.2d 409, 414 [115 P.2d 977] [one [HN12] who has been induced by fraudulent misrepresentations to sign agreement is entitled to have agreement set aside]; Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1474 [266 Cal. Rptr. 593] [same]; see [***37] also American T. Co. v. California etc. Ins. Co. (1940) 15 Cal.2d 42, 65 [98 P.2d 497] [“Regardless of whether one is under a duty to speak or disclose facts, one who does speak must speak the whole truth, and not by partial suppression or concealment make the utterance untruthful and misleading.”].) Thus, we must determine whether, with all facts and inferences construed in plaintiffs’ favor, the conduct shown by plaintiffs’ evidence could be found to constitute fraud. If so, then it is a question of fact for the jury to determine whether the release in this case was ineffective.

In Frusetta, a personal injury case, the plaintiff asserted that an insurance adjuster who worked for Twentieth Century Insurance Company told her that a preprinted check was to be a partial payment for injuries she suffered in a car accident, and the adjuster represented to her that another payment would be forthcoming. (Frusetta, supra, 217 Cal.App.3d at p. 554.) The check included the words, “‘Bodily injury in full and final settlement.'” (Ibid.) The reverse of the check stated that if “‘”Full and Final Settlement” is printed on the front of the draft, endorsement of the draft constitutes a full Release of all claims known or unanticipated which the under-signed has or may hereafter have against the Payor … .'” (Ibid.) The plaintiff endorsed [***38] and cashed the check, and Twentieth [**244] Century claimed that by doing so, she released it from any further liability. (Id. at pp. 554-555.) The Frusetta court reasoned, “it is clearly possible that a jury might find the circumstances demonstrated fraud or overreaching on the part of Twentieth Century. If a jury accepted [the plaintiff’s] testimony a Twentieth Century adjuster stated to her the check was a partial settlement and the rest would be paid later, then it might be found Twentieth Century violated its duty to act in good faith.” (Id. at p. 558.) Accordingly, the court held there was a triable issue of fact as to whether “a [*565] fraud or misrepresentation … induced a party’s signing of a release ‘[where] it substantially contribute[d] to his decision to manifest his assent.'” (Id. at pp. 556-557.)

A recent Ninth Circuit case applying California law, Doe v. Gangland Productions, Inc. (9th Cir. 2013) 730 F.3d 946 (Gangland), is also instructive. There, the plaintiff sued two production companies for broadcasting a television documentary without concealing his identity. (Id. at pp. 951-952.) In an anti-SLAPP motion to strike the complaint, among other arguments, the defendants contended that the plaintiff’s claims were barred because he signed a release consenting to disclosure of his real identity in the broadcast [***39] and waiving all claims for liability. (Id. at pp. 957-958.) In order to overcome the anti-SLAPP motion, the plaintiff had to demonstrate a probability of prevailing on the merits of his claims. (Id. at p. 957.) In a declaration, the plaintiff stated that he was dyslexic, illiterate, and that he informed the Gangland producer who asked him to sign the release that he had “‘extreme difficulty reading.'” (Id. at p. 952.) The plaintiff also stated that “when he was provided the alleged release, [the producer] told him it was ‘just a receipt’ for his $300 payment for the interview. Because of these representations, [the plaintiff] did not ask his girlfriend to read out loud the document before he signed it.” (Id. at p. 958.) The court reasoned that the plaintiff “made a sufficient showing of fraud in the execution of the release, which, if true, would render the release void.” (Ibid.)

In reaching its conclusion, the court in Gangland cited Mairo v. Yellow Cab Co. (1929) 208 Cal. 350 [281 P. 66]. In Mairo, the California Supreme Court reviewed a directed verdict in the defendant’s favor, where the trial court concluded that the plaintiff had waived his rights by executing several releases. (Id. at pp. 351-352.) The plaintiff was an illiterate Russian immigrant who understood little spoken English. (Id. [***40] at p. 351.) He was injured after being hit by the defendant’s taxicab and during the course of his medical treatment, the defendant had him sign several releases in exchange for the payment of his medical treatment. (Id. at pp. 351-352.) The plaintiff asserted that the defendant misrepresented the true contents of the releases and that he believed they were merely a permit to operate on him and receipts. (Id. at p. 352.) The court held that if the true nature of the releases was “misrepresented to [the plaintiff] so that he did not know what he was really signing, they are, of course, void. But under the conflicting evidence here it is impossible to tell whether such was the fact. This also was an issue which should have gone to the jury and it was, therefore, erroneous for the trial court to direct said verdict for defendant.” (Ibid.; see Meyer v. Haas (1899) 126 Cal. 560, 562 [58 P. 1042] [holding that a release was void where the releaser could not read English and understood little spoken English, and the releasee “did not convey full information as to [the release’s] contents”].) [*566]

[**245] Defendant dismisses the application of Frusetta and other cases where there was “affirmative misrepresentation or fraud” regarding the nature or character of the document in question, [***41] because here there was no verbal misrepresentation. However, in our view, this is a distinction without a difference. 24 Hour contends that these nonverbal communications cannot, as a matter of law, amount to affirmative misrepresentations because Etelvina “could not reasonably have relied upon anything Mr. Wilbourn said” since he spoke a different language. 24 Hour’s argument implies that nonverbal communications cannot be misrepresentative or induce reasonable reliance. We reject this argument. While it may be less reasonable for a plaintiff to rely on nonverbal communications in a case where the parties speak the same language, in this case, gesturing was virtually the only form of communication between Wilbourn and Etelvina. It is undisputed that Etelvina did not speak English and Wilbourn did not speak Spanish. Further, Wilbourn knew Etelvina did not speak or read English. And he knew that Etelvina did not read the contract, including the terms setting forth the release, even though, as the membership manager, he must have known that the release says, “By signing below, you acknowledge and agree that you have read the foregoing …” provisions of the release. (Italics added.) Under [***42] these circumstances, already ripe for misrepresentation and overreaching, Wilbourn’s gestures and pointing may very well have misrepresented the nature of the document Etelvina signed. This is an inherently factual question for a jury to decide. (See Jordan v. Guerra (1943) 23 Cal.2d 469, 475 [144 P.2d 349] [“[I]t [HN13] is for the trier of the facts to determine what the plaintiff understood was covered by the writing and whether his understanding different from the writing was induced by the defendant.”].)

24 Hour relies heavily on Randas, supra, 17 Cal.App.4th 158, arguing that under Randas, a case involving a release signed by a person who did not speak English, it had no duty to translate or explain the membership agreement to Etelvina and that Etelvina had no one to blame but herself. Randas does not help 24 Hour because there was no claim of fraud or overreaching in that case and the releasee had no reason to think the releaser could not read the release. Indeed, the Randas court made a point of those circumstances, specifically noting, “Appellant made no claim of respondent’s fraud or overreaching. Nor did appellant claim that respondent had reason to suspect she did not or could not read the release she had signed and which in full captions above and below her signature stated: [***43] ‘I Have Read This Release.'” (Id. at p. 163.) Here, plaintiffs’ theory is fraud and overreaching. And it is clear that Wilbourn knew Etelvina could not and did not read the release.

Accordingly, we reverse the trial court’s ruling on this basis as well. [*567]

IV. Foreseeability That 24 Hour Would Intentionally Increase the Risk of Danger

On appeal, plaintiffs also contend that the release is unenforceable because a release only encompasses risks that are foreseeable at the time it is signed, and it was not reasonably foreseeable that 24 Hour would intentionally increase the risk of danger to its treadmill users. However, plaintiffs did not pursue this argument below in either their opposition to the summary judgment motion or during oral argument on the motion. Additionally, plaintiffs did not allege that 24 Hour engaged in intentional conduct in their complaint or raise undisputed facts pertaining [**246] to this foreseeability theory in their separate statement of facts. Accordingly, we decline to consider this argument for the first time on appeal. (See Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767 [118 Cal. Rptr. 3d 531] [reasoning that [HN14] generally, theories not raised in the trial court cannot be asserted for the first time on appeal, particularly where it is unclear whether [***44] the theory raises a pure question of law].)

DISPOSITION

The judgment is reversed. 24 Hour shall pay plaintiffs’ costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1) & (5).)

Blease, Acting P. J., and Hull, J., concurred.


Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart

To win a lawsuit you must have evidence to support your claim.

Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

State: Tennessee, United States District Court for the Eastern District of Tennessee

Plaintiff: A.B. By Next Friend, Rachelle Burnett,

Defendant: Pacific Cycle, Inc. and Wal-Mart Stores East, L.P.,

Plaintiff Claims: Pacific was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. was negligent in the assembly, marketing, distribution, and sale of the bicycle

Defendant Defenses: Motion to Dismiss for failure to state a claim

Holding: Case was dismissed

Year: 2007

This case concerns a Mongoose DXR bicycle manufactured by Pacific Cycle and sold by Wal-Mart in Tennessee. The bike was purchased fully assembled. The bike was ridden regularly by the minor plaintiff for the next four years. No maintenance was performed on the bike during that time.

The bike was equipped with a quick release. No one admitted ever opening or removing the quick release. While camping, the minor plaintiff was riding the bicycle when he suffered injuries to his face and head. The plaintiff did not remember the accident.

The defendants filed a motion for summary judgment, which was granted.

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

The case was brought under the Tennessee Product Liability Act. To prove a claim under the act the plaintiff “must prove that the product in question was “in a defective condition or unreasonably dangerous at the time, it left the control of the manufacturer or seller.” A defective condition is one that renders a product “unsafe for normal or anticipatable handling and consumption.”

An unreasonably dangerous product under the act is defined as:

…dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

Consequently, the plaintiff must show a product is defective or unreasonable dangerous. The defect or unreasonable dangerous condition was the proximate cause and the cause, in fact, for the injury to the plaintiff. A mere malfunction of the product does not create liability. Nor is an injury to the plaintiff alone sufficient to prove a case.

Because the plaintiff could not remember the accident, there was no proof that a defect caused the injury to him.

Plaintiffs have not established that the alleged defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause, in fact, of the accident. A.B. admits that he cannot remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident.

There was also expert testimony from the defendant’s expert who stated the accident was not caused by the quick release.

So Now What?

This is a simple case that analysis the product liability requirements necessary to prove a case in Tennessee. The pivotal issue was no one saw the accident nor was the plaintiff able to remember the accident.

On top of that the plaintiff did not hire an expert witness to support or prove its claims. Consequently, the only evidence from an expert the court had in front of it was from the defendant’s expert.

No evidence to prove the case in front of the court, the court must rule for the defendant.

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Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

A.B. By Next Friend, Rachelle Burnett, Plaintiffs, v. Pacific Cycle, Inc. and Wal-Mart Stores East, L.P., Defendants.

No.: 3:06-CV-266

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2007 U.S. Dist. LEXIS 55719

July 31, 2007, Filed

CORE TERMS: bicycle, summary judgment, dangerous condition, unreasonably dangerous, front wheel, manufacturer, unreasonably, remember, genuine, seller, campground, products liability, rode, matter of law, defective condition, entitled to judgment, genuine issue, issue of material fact, moving party, burden of proof, proximate cause, manufacture, deposition, non-moving, marketing, favorable, assembly, consumer, hearsay, wheel

COUNSEL: [*1] For A.B., next friend Rachelle Burnett, Plaintiff: Lori L Jessee, LEAD ATTORNEY, Bacon, Jessee & Perkins, Morristown, TN; Sidney W Gilreath, Timothy A Housholder, LEAD ATTORNEYS, Gilreath & Associates, PC, Knoxville, TN.

For Pacific Cycle, Inc., Wal-Mart Stores East, L.P., Defendants: Travis J Graham, LEAD ATTORNEY, Gentry, Locke, Rakes & Moore, LLP, Roanoke, VA.

JUDGES: Thomas A. Varlan, UNITED STATES DISTRICT JUDGE.

OPINION BY: Thomas A. Varlan

OPINION

MEMORANDUM OPINION

This civil action is before the Court on the defendants’ Motion for Summary Judgment [Doc. 12]. Plaintiffs, A.B. and next friend Rachelle Burnett (“Plaintiffs”), claim that A.B. was injured in a bicycle accident because of the negligence of the defendants. [Doc. 1] Specifically, Plaintiffs allege that defendant Pacific Cycle, Inc. (“Pacific”) was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. [Id. at PP 9-13] Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. (“Wal-Mart”) was negligent in the assembly, marketing, distribution, and sale of the bicycle in question. [Id. at PP 14-16] In their motion for summary judgment, the defendants argue that, pursuant to Fed. R. Civ. P. 56, [*2] they are entitled to judgment as a matter of law because Plaintiffs cannot prove that the bicycle was defective or unreasonably dangerous, nor can they prove that A.B.’s injury was caused by the alleged defect. Plaintiffs have not responded to the instant motion and the time for doing so has passed. See L.R. 7.1(a), 7.2.

The Court has carefully reviewed the pending motion, along with the supporting brief in light of the entire record and controlling law. For the reasons set forth herein, the defendants’ motion for summary judgment will be granted.

I. Relevant Facts

In approximately December, 2000, Plaintiffs purchased a Mongoose DXR / MGX mountain bike (the “Bicycle”) from the Jefferson City, Tennessee Wal-Mart. [Doc. 1 at P 5] The Bicycle was fully assembled when purchased. [Doc. 13, Attachment 2 at p. 3] The Bicycle’s front wheel was equipped with a quick release mechanism which allows the front wheel to be detached. [Doc. 1 at P 8] Plaintiffs never manually removed the front wheel from the Bicycle. [Doc. 13, Attachment 2 at p. 3, 5] Other than simple maintenance, including inflating the tires and oiling the chain, no work was ever performed on the Bicycle while in Plaintiffs’ possession. [*3] [Id. at p. 4]

A.B. rode the Bicycle frequently in the following years, varying from once a week to once every few days. [Doc. 13, Attachment 4 at p. 5] A.B. normally only rode the Bicycle in Plaintiffs’ driveway, yard, and at a nearby church. [Id. at p. 4] In June, 2004, Plaintiffs went on a camping trip and brought the Bicycle. [Doc. 13, Attachment 3 at p. 6] The Bicycle was transported to the campground in the back of Plaintiffs’ truck. [Id.] The wheels were not removed while the Bicycle was in transit to the campground. [Id.] Plaintiffs arrived at the campground on the afternoon of June 24, 2004. [Id.] A.B. did not ride his bicycle on June 24, 2004, but did ride it some on June 25, 2004 with no difficulty. [Id.] On June 26, 2004, A.B. again rode his bicycle around the campground, but this time had an accident and sustained a severe injuries to his face and head. [Id.] A.B. remembers “riding [the Bicycle] back to the campsite, and then . . . looking over and seeing this big family, and then everything went black.” [Doc. 13, Attachment 4 at p. 7] A.B. does not remember how the accident happened. [Id.] The accident was witnessed by an unknown camper [Id. at p. 8], but there is no evidence [*4] of record that the unknown camper has ever been identified. At the time of the accident, A.B. was just riding along on a smooth, gravel road, and was not trying to perform any tricks. [Id. at p. 10] A.B. does not remember whether the front wheel of the Bicycle came off before or after the accident. [Id.]

II. Standard of Review

Under Fed. R. Civ. P. 56(c), summary judgment is proper if “the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could [*5] find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

The judge’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.

III. Tennessee Product Liability Act

Plaintiffs claim that Pacific was negligent in the design, manufacture, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the Tennessee Product Liability Act (“TPLA”). Plaintiffs further allege that Wal-Mart was negligent in the assembly, marketing, [*6] distribution, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the TPLA.

In order to recover against a manufacturer or seller under the TPLA, a plaintiff must prove that the product in question was “in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a). The TPLA defines a “defective” condition as “a condition of a product that renders it unsafe for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-102(2). The TPLA defines “unreasonably dangerous” as a product

dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

Tenn. Code Ann. § 29-28-102(8). “These statutory definitions essentially codify the ‘consumer expectation test’ as the basis in Tennessee [*7] for assessing products liability.” Tatum v. Cordis Corp., 758 F. Supp. 457, 461 (M.D. Tenn. 1991).

“Thus, regardless of the theory, the plaintiff must show that something is wrong with a product that makes it defective or unreasonably dangerous.” Bradley v. Danek Medical, Inc., No. 96-3121, 1999 U.S. Dist. LEXIS 6449, at *25 (W.D. Tenn. Mar. 29, 1999) (citations omitted). Additionally, the plaintiff must show that the alleged defect or unreasonably dangerous condition of the product was both the proximate cause and the cause in fact of the plaintiff’s injury. Pride v. BIC Corp., 218 F.3d 566, 580 (6th Cir. 2000). “[A] device failure or malfunction will not, without more, render a manufacturer liable.” Bradley, 1999 U.S. Dist. LEXIS 6449, at *25 (citing Harwell v. American Medical Sys., Inc., 803 F. Supp. 1287, 1298 (M.D. Tenn. 1992)). “Moreover, the fact that plaintiff was injured is not proof of defect.” Id. (citing Fulton v. Pfizer Hosp. Products Group, Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App. 1993).

In the instant case, Plaintiffs have presented no proof in support of their claims, instead relying solely on their complaint. The plaintiffs’ complaint, even if accepted as true for [*8] purposes of summary judgment, consists of allegations which are not acceptable proof under Rule 56. Mere notice pleading is not sufficient to defeat a well-pled summary judgment motion. See Garth v. University of Kentucky Medical Center, No. 92-5177, 1992 U.S. App. LEXIS 14677, at *3-4 (6th Cir. June 16, 1992) (“To survive a motion for summary judgment, [the plaintiff] was required to do more than rest on her pleadings; she was required to demonstrate that a genuine issue for trial existed.”); Teamsters Local Union No. 486 v. Andersen Sand and Gravel Co., No. 82-1124, 711 F.2d 1059, 1983 U.S. App. LEXIS 13044, at *6 (6th Cir. May 11, 1983) (“Where the district court has afforded a party opposing summary judgment under Rule 56 an opportunity to set forth specific facts showing there is a genuinely disputed factual issue for trial and that opportunity has been ignored, summary judgment is appropriate if the movant has carried his burden of proof.”). After reviewing the record in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have failed to carry their burden and that the defendants’ motion for summary judgment should be granted.

Plaintiffs have not established that the alleged [*9] defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause in fact of the accident. A.B. admits that he can not remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident. [Doc. 13, Attachment 4 at p. 10] Nor is there any other evidence of record as to the cause of the accident. The Court notes that Ms. Burnett did indicate during her deposition that A.B. “told me before that he remembered the wheel coming off and it going forward,” but that testimony is inadmissible hearsay and not based upon Ms. Burnett’s own personal knowledge. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“hearsay evidence may not be considered on summary judgment”).

In contrast, the defendants have presented expert testimony proving that the accident was not caused by quick release mechanism on the Bicycle’s front tire and that the Bicycle was not defective nor unreasonably dangerous. [Doc. 13, Attachment 3] Accordingly, the Court finds that Plaintiffs have not carried their burden of proof with respect to identifying a defect or dangerous condition [*10] of the Bicycle and showing that the defect or dangerous condition was the proximate cause and the cause in fact of the plaintiff’s injury, and thus defendants’ motion for summary judgment will be granted.

IV. Conclusion

For the reasons set forth herein, the defendants’ motion for summary judgment [Doc. 12] will be GRANTED and Plaintiffs’ claims will be DISMISSED with prejudice.

ORDER ACCORDINGLY.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE


More than allegations and plaintiff’s testimony to sustain a motion for summary judgment for a binding defect in West Virginia

Failure of the plaintiff to keep the broken binding or have any other proof the binding broke would have changed the outcome of the case.

Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

State: West Virginia

Plaintiff: Daniel Mrotek

Defendant: Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Appellees, and Elk Mountain Outfitters, Inc., v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc.

Plaintiff Claims: negligence and product liability

Defendant Defenses: Plaintiff did not produce any evidence of negligence on the part of the defendant. Alternatively, the court found that plaintiff signed a valid release.

Year: 2003

Holding: for the defendant

The plaintiff from Florida with a group of friends went to Snowshoe Ski Area in West Virginia for four days of skiing. He first rented skis from the defendant. While renting he signed a release.

While skiing he fell. He claimed the toe piece of one of the bindings came off. Both the plaintiff and one of his friends testified they through the toe piece away.

The plaintiff exchanged the skis for another pair with the defendant. The defendant testified the skis were in good condition and rented out the next day. The plaintiff did not report the ski binding failed nor did he report an accident to anyone.

Upon the plaintiff’s return to Florida, he was suffering head aches and blurred vision. He eventually needed four surgeries and had a permanent shunt placed in his head.

The plaintiff sued the defendant rental business. The rental business filed claims against the ski and binding manufacturer as third party defendants. The trial court, called a Circuit Court in West Virginia dismissed the claims of the plaintiff against the defendant. By doing so the third party claims are also dismissed against the third party defendants. The plaintiff appealed.

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

The basis of the court’s ruling in favor of the defendant was the plaintiff “failed to identify any act or omission allegedly committed by EMO, which in any way caused or contributed to the alleged skiing accident.” In a negligence claim, the negligence must be proved, it cannot be imputed or presumed.  

Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”

After examining all the evidence the court found” The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing.”

The defendant had no evidence of a broken ski or binding. The plaintiff had not told the defendant the binding was broken and had not registered a claim. No third party saw the broken binding other than the friend who testified it had been thrown away.

The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.

In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case.

So Now What?

This case would have been totally different if the plaintiff had kept the toe piece, photographed it or pointed out the problem to a third party or the defendant; anything to support his claim other than his statements.

The main reason for this statement is releases in West Virginia have been disfavored whenever they reach the West Virginia Supreme Court. (See States that do not Support the Use of a Release.)

The defendant did the correct thing by following the protocol set up by the ski rental industry. The ski was examined, and nothing was found to be defective so the ski and binding were rented out the next day. If necessary, the defendant could have brought in the rental receipts showing the ski and bindings had been rented and how often after the plaintiff’s incident.

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Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

Daniel Mrotek, an Individual, Plaintiff Below, Appellant, v. Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Defendants below, Appellees, and Elk Mountain Outfitters, Inc., A Corporation, Defendant/Third-Party Plaintiff Below, Appellees, v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc., Third-Party Defendants Below, Appellees.

No. 31395

SUPREME COURT OF APPEALS OF WEST VIRGINIA

214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

November 18, 2003, Submitted

December 3, 2003, Filed

PRIOR HISTORY: [***1] Appeal from the Circuit Court of Pocahontas County. Honorable James J. Rowe, Judge. Civil Action No. 99-C-37.

DISPOSITION: AFFIRMED.

SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

2. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

COUNSEL: Larry E. Losch, William A. McCourt, Jr., Summersville, West Virginia, Attorneys for Appellant.

William J. Hanna, Robert P. Lorea, Flaherty, Sensabaugh & Bonasso, Charleston, West Virginia, Attorneys for Appellee, Elk Mountain Outfitters, Inc.

Rob J. Aliff, Jackson & Kelly, Charleston, West Virginia, Attorney for Appellee, Skis Dynastar.

Robert M. Steptoe, Jr. [***2] , Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Appellee, Adidas American, Inc.

M. Hance Price, Steptoe & Johnson, Martinsburg, West Virginia, Attorney for Adidas American, Inc.

OPINION

[*491] [**684] Per Curiam:

This appeal was filed by Daniel Mrotek, appellant/plaintiff below (hereinafter referred to as “Mr. Mrotek”), from an order of the Circuit Court of Pocahontas County granting summary judgment in favor of Coal River Canoe, Ltd., d/b/a Elk Mountain Outfitters, Inc. (hereinafter referred to as “EMO”), appellee/defendant below. Mr. Mrotek filed an action against EMO alleging that he sustained injuries as a result of his use of an allegedly defective ski that he rented from EMO. The circuit court granted summary judgment on two alternative grounds. The circuit court found that Mr. Mrotek did not produce any evidence of negligence on the part of EMO. Alternatively, the court found that Mr. Mrotek signed a valid release of his right to sue EMO for any injury caused by its equipment. In this appeal, Mr. Mrotek contends that genuine issues of material fact are in dispute as to whether EMO supplied him with a defective ski and that the release from liability he signed was unenforceable. [***3] Upon review of the briefs and record in this case, we affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Mrotek is a resident of Florida. On December 28, 1997, Mr. Mrotek and a group of seven friends came to Snowshoe, West Virginia, for a four day skiing vacation. Upon their arrival, Mr. Mrotek and some of his companions rented skiing equipment from EMO. As part of the rental transaction, EMO required all customers to read and execute a document releasing EMO from any harm caused by its equipment. Mr. Mrotek signed the release.

Shortly after renting the ski equipment, Mr. Mrotek and his companions ventured off to engage in night skiing. During the first run of the evening Mr. Mrotek fell and apparently hit his head. A skiing companion, Herman Serpa, saw Mr. Mrotek fall and came to his aid. Mr. Serpa states that he noticed that a toe binding on Mr. Mrotek’s right ski was missing. Mr. Serpa states that he found the toe binding with three rusty screws protruding from it. The toe binding was allegedly thrown away by either Mr. Serpa or Mr. Mrotek. However, neither man appears to have recalled who threw away the toe binding.

Mr. Serpa allegedly returned the defective ski and received [***4] a replacement. Mr. Mrotek did not report the incident to EMO even though, as a result of the fall, he allegedly “became very dizzy, sick at his stomach with vomiting along with severe headaches.”

Upon returning to Florida, Mr. Mrotek sought medical treatment for blurred vision, nausea and exhaustion. A medical examination revealed Mr. Mrotek suffered from Papilledema, i.e., fluid on the brain caused by a damaged ventricle. On February 16, 1998, Mr. Mrotek underwent surgery to place a shunt in his skull to drain the excess fluid. Due to complications, Mr. Mrotek eventually underwent three more surgeries. Although Mr. Mrotek has recovered from the problems caused by the excess fluid, he must permanently have “a small tube running underneath his skin from his brain down his neck and into his heart to maintain the pressure and stability inside his skull.”

Mr. Mrotek filed this action against EMO [**685] [*492] in 1999, 1 alleging EMO supplied him with a defective ski which caused him to fall and sustain a head injury. 2 After a period of discovery, EMO moved for summary judgment. By order entered June 17, 2002, the circuit court granted summary judgment in favor of EMO. 3 This appeal is a result [***5] of the circuit court’s ruling.

1 The record submitted on appeal is extremely sparse and does not contain the pleadings.

2 EMO filed a third-party complaint against the suppliers of the ski, Skis Dynastar, Inc. and Salomon North American, Inc., for indemnity or contribution.

3 The circuit court’s order also dismissed EMO’s third-party complaint.

II.

STANDARD OF REVIEW

The standard for our review of an order granting summary judgment is well established. [HN1] “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Insofar as “‘appellate review of an entry of summary judgment is plenary, this Court, like the circuit court, must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.'” Provident Life and Accident Ins. Co. v. Bennett, 199 W. Va. 236, 238, 483 S.E.2d 819, 821 (1997) (quoting [***6] Asaad v. Res-Care, Inc., 197 W. Va. 684, 687, 478 S.E.2d 357, 360 (1996)). We have made clear that [HN2] “summary judgment is appropriate [only] if ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'” Pritt v. Republican Nat’l Comm., 210 W. Va. 446, 452, 557 S.E.2d 853, 859 (2001) (quoting W. Va.R. Civ. P. 56(c)). Further, [HN3] “summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). With these standards as our guide, we now address the issues asserted on appeal.

III.

DISCUSSION

The dispositive issue in this case is the determination by the circuit court that Mr. Mrotek “failed to identify any act or omission allegedly committed by EMO which in any way caused or contributed to the alleged skiing accident.” [HN4] This Court has observed that “it is an elementary principle [***7] of law that negligence will not be imputed or presumed. The bare fact of an injury standing alone, without supporting evidence, is not sufficient to justify an inference of negligence.” Walton v. Given, 158 W. Va. 897, 902, 215 S.E.2d 647, 651 (1975). 4 Moreover, [HN5] “negligence . . . is a jury question when the evidence is conflicting or the facts are such that reasonable men may draw different conclusions from them.” Burgess v. Jefferson, 162 W. Va. 1, 3, 245 S.E.2d 626, 628 (1978).

4 Mr. Mrotek contends that the doctrine of res ipsa loquitur should be applied to the facts of this case to overcome summary judgment. [HN6] “Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Syl. pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997). Clearly, under the Foster formulation of [HN7] res ipsa loquitur, the doctrine simply has no application to falling while skiing–which is an extremely frequent incident that can occur without any negligence. See Syl. pt. 2, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991) [HN8] (“The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant’s negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.”).

[***8] The primary evidence relied upon by Mr. Mrotek was the deposition [**686] testimony of Mr. Serpa. Mr. Mrotek presented the deposition [*493] testimony of Mr. Serpa to show that the toe binding on the right ski came loose. Mr. Serpa testified that he found a piece of the binding with three rusty screws protruding from it. There was also testimony by Mr. Serpa that he returned the defective ski to EMO and was given a replacement. There was also evidence to show that the skis rented by Mr. Mrotek were not tested for weakness by EMO prior to 1997-98 ski season.

EMO took the position that nothing happened to the skis that were rented to Mr. Mrotek. According to EMO’s records the skis rented to Mr. Mrotek were returned in good condition and were rented out again the day after Mr. Mrotek returned them. EMO presented an affidavit from its management employee, Charlie McDaniels. Mr. McDaniels indicated that the bindings used on the skis rented by EMO were made of aluminum or were galvanized and would not rust.

In looking at the evidence in the light most favorable to Mr. Mrotek, we do not find a material issue of fact in dispute. EMO presented evidence to establish that no defect existed in the skis rented [***9] to Mr. Mrotek. In fact, there was evidence that Mr. Mrotek examined the skis before renting them and found nothing wrong. EMO also established that they had no record to show that Mr. Serpa or Mr. Mrotek turned in a broken ski. Mr. Mrotek presented bare testimonial evidence to show that a toe binding broke loose from the right ski. No actual evidence was introduced showing the defective ski or the parts that were allegedly broken from the ski. See Williams v. Precision Coil, Inc., 194 W. Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) [HN9] (“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”). The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing. [HN10] The mere fact of falling while skiing is not actionable negligence. See Painter v. Peavy, 192 W. Va. 189, 192-93, 451 S.E.2d 755, 758-59 (1994) [HN11] (“The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.”); Syl. pt.1, in part, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981) [***10] [HN12] (“In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case. 5

5 Because we affirm the circuit court’s initial reason for granting summary judgment, we need not address the issue involving the release signed by Mr. Mrotek.

IV.

CONCLUSION

In view of the foregoing, the circuit court’s order granting summary judgment in favor of EMO is affirmed.

Affirmed.


Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product.

The Passive-Retailer doctrine provides a defense for companies in the supply chain who have no hand, influence or part of the manufacturing process. The key word in the defense is the word passive.

Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

State: Utah, Court of Appeals of Utah

Plaintiff: Jamie Mcquivey

Defendant: Kim Yong Lung Industrial (KYL), which manufactured the helmet in Taiwan; Fulmer Helmets, which distributed the helmet throughout the American market; and White Knuckle Motor Sports, which sold the helmet

Plaintiff Claims: strict liability for defective design as well as negligence and failure to warn, Utah Product Liability Act

Defendant Defenses: Passive retailer defense

Holding: For the plaintiff

Year: 2014

The facts in this case are a little outside of the normal facts written about here. However, the defense in the case is rare and the opportunity to write about the case is important.

This case involves a helmet that failed during an ATV accident. The eight-year-old son of the plaintiff was riding an ATV when he crashed. His helmet cracked, and the helmet cut his face. The mother sued the Manufacturer, the importer distributor and the retailer.

The manufacturer and retailer were dismissed from the case leaving only the importer, Fulmer. The retailer was dismissed because “White Knuckle [retailer] had neither knowledge of potential defects nor influence over the helmet’s design, safety, or manufacturing.” The manufacturer was dismissed because it moved to dismiss for lack of personal jurisdiction.

The importer/defendant then moved to dismiss based on the theory that Fulmer was a passive retailer and could not be held liable for the defects in the helmet. The district court agreed and dismissed Fulmer. The plaintiff appealed that decision leading to this appeal.

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

The court first went through Utah Product liability law.

Under general principles of tort law, “as between an injured buyer of a product, and the seller of the product, the seller must bear the liability.”

Under Utah’s Product Liability Act, a “manufacturer or other initial seller” who sells an “unreasonably dangerous product” may be liable for resulting “personal injury, death, or property damage.”

Under Utah’s law, strict liability does not require proof of fault, only that the manufacturer sold a defective helmet.

The court then defined the Passive-Retailer Doctrine.

The passive-retailer doctrine creates an exception to strict liability under the Product Liability Act for “passive retailers”–sellers who do not “participate in the design, manufacture, engineering, testing, or assembly” of a product. Under this doctrine, “a passive retailer is not subject to a strict liability claim . . . where the manufacturer is a named party to the action.” The passive-retailer doctrine thus allows the trial court to dismiss a strict-liability claim against a codefendant when undisputed facts establish that no fact finder could, under principles of comparative fault, apportion fault to that codefendant. In this circumstance, “as long as [the actual manufacturer] is present in the suit, there remains no reason to require [a passive retailer] to incur the time and expense of defending” the action.

This is a defense for retailers, that has been adopted by a minority of states. It makes sense in today’s world of prepackaged products that are too complicated for the normal retailer to understand.

This decision found legislatures in Nebraska, Delaware, Idaho, Kansas, Iowa, Maryland, Minnesota, Missouri, North Dakota, Tennessee and Washington had adopted a variation of the doctrine. Courts in Texas, New York, and Oklahoma adopted  the doctrine.

In Utah, the doctrine only was used twice. However, in this case this court found the doctrine did not apply. The defendant Fulmer did more than merely import and sell the helmets.

The defendant’s name was on the helmets, and they were marketed as Fulmer’s helmets. Fulmer reviewed the design of the helmets, tested samples and made changes to the samples. Fulmer performed on-site visits to the manufacturing facility twice annually. Fulmer required the helmets to be manufactured to US DOT standards.

Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability, as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.”

This level of participation was found by the court to be more than passive. The court based on this review found the defendant importer did not qualify for the defense of the Passive Retailer doctrine and sent the case back for trial.

So Now What?

The product liability laws in the US were developed to protect people. That worked when everyone in the supply chain from the manufacturer to the retailer could identify a defect and stop the sale of a defective product. That time ended when we moved from a “general store” to the current marketing system we use today.

If you are a retailer, you should investigate if the Passive-Retailer Doctrine applies to you in your state. Find out what you need to do to make sure you understand the doctrine and how you must work to be afforded its protection.

If you are a manufacturer, you need to understand who in your supply chain may be subject to this defense and keep that in mind when dealing with everyone in your supply chain to keep the defense viable.

What do you think? Leave a comment.

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Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

Jamie Mcquivey, Plaintiff and Appellant, v. Fulmer Helmets, Inc., Defendant and Appellee.

No. 20121056-CA

COURT OF APPEALS OF UTAH

2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

July 31, 2014, Filed

PRIOR HISTORY: [**1] Fourth District Court, Provo Department. The Honorable Claudia Laycock. No. 090403384.

COUNSEL: Mark R. Taylor, Henry N. Didier Jr., and P. Alexander Gillen, Attorneys for Appellant.

Julianne P. Blanch and Tsutomu L. Johnson, Attorneys for Appellee.

JUDGES: JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGE JOHN A. PEARCE concurred. JUDGE JAMES Z. DAVIS concurred in the result.

OPINION BY: J. FREDERIC VOROS JR.

OPINION

VOROS, Judge:

[*P1] Eight-year-old Conway Cook crashed an all-terrain vehicle while wearing a protective helmet. Instead of protecting him, the helmet cracked and injured his face. Conway’s mother sued various defendants on his behalf. The district court dismissed the claim against Fulmer Helmets, Inc. under the passive-retailer doctrine. We reverse and remand for further proceedings.

BACKGROUND 1

1 [HN1] When reviewing a district court’s rulings on a summary judgment motion, we recite all facts and fair inferences in the light most favorable to the nonmoving party. Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439.

[*P2] In 2008, Conway Cook drove his ATV down a dirt path, trailing his grandfather’s truck. Conway wore a Fulmer Blade AF-C1, a helmet designed for children. While driving along the path, Conway hit a shallow ditch. The impact ejected Conway and flipped [**2] the ATV. The helmet’s chinguard snapped on impact, and the sharp edge of the now-serrated plastic guard cut deeply into Conway’s face. His injuries were serious and will require lifelong care and future surgeries.

[*P3] On Conway’s behalf, his mother, Jamie McQuivey, sued three parties: Kim Yong Lung Industrial (KYL), which manufactured the helmet in Taiwan; Fulmer Helmets, which distributed the helmet throughout the American market; and White Knuckle Motor Sports, which sold the helmet to Conway’s father. Against Fulmer, McQuivey alleged strict liability for defective design as well as negligence and failure to warn.

[*P4] The district court dismissed McQuivey’s claims against both KYL and White Knuckle. McQuivey stipulated to White Knuckle’s dismissal because the evidence showed that White Knuckle had neither knowledge of potential defects nor influence over the helmet’s design, safety, or manufacturing. KYL moved to dismiss the claims against it for lack of personal jurisdiction. Fulmer and McQuivey did not oppose the motion, and the district court granted it, leaving Fulmer as the lone defendant.

[*P5] Fulmer moved for summary judgment. Fulmer argued that, as a passive retailer, it could not be [**3] held liable for defects in the helmet. The district court agreed and dismissed all claims against Fulmer, terminating the litigation.

ISSUE AND STANDARD OF REVIEW

[*P6] McQuivey contends that the district court erred in granting summary judgment for Fulmer on the ground that it qualifies as a passive retailer. [HN2] We review a district court’s “legal conclusions and ultimate grant or denial of summary judgment for correctness . . . and view[] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted). Furthermore, “[t]he determination of whether a passive seller of a product can be held strictly liable under the Utah Liability Reform Act . . . is based on the trial court’s interpretation of a statute, which we review for correctness without deference to the trial court’s conclusions.” Yirak v. Dan’s Super Mkts., Inc., 2008 UT App 210, ¶ 3, 188 P.3d 487 (citation and internal quotation marks omitted).

ANALYSIS

[*P7] McQuivey contends that the district court improperly applied the passive-retailer doctrine to Fulmer and thus erred in dismissing Fulmer from the case. She argues that Fulmer does not qualify as a passive retailer because “[Fulmer] is not passive in the design, manufacturing, [**4] and testing of the helmets bearing its name.” Fulmer responds that it qualifies as a passive retailer because it “does not design or manufacture helmets.”

[*P8] [HN3] Under general principles of tort law, “as between an injured buyer of a product, and the seller of the product, the seller must bear the liability.” Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 15, 94 P.3d 301. Utah has long recognized a cause of action against the seller of defective products. Hahn v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). Under Utah’s Product Liability Act, a “manufacturer or other initial seller” who sells an “unreasonably dangerous product” may be liable for resulting “personal injury, death, or property damage.” Utah Code Ann. § 78B-6-703(1) (LexisNexis 2008). And under the Second Restatement of Torts, section 402A, the commercial seller of a defective product may be held strictly liable–liable without proof of fault–for harm caused by the product:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Restatement (Second) of Torts § 402A (1965) expressly [**5] adopted in Hahn, 601 P.2d at 158. Thus, because “strict liability does not require an examination of a party’s fault,” a manufacturer or other initial seller can be held liable for a defective product regardless of its degree of fault. Sanns, 2004 UT App 203, ¶ 14 n.5, 94 P.3d 301. However, these rules exist in tension with another feature of Utah tort law: comparative fault.

[*P9] Comparative fault became the law of Utah in 1986. Before that time, Utah applied the common-law rule of joint-and-several liability. Under joint-and-several liability, “a tortfeasor was potentially liable for the entire amount of a plaintiff’s damages, irrespective of what proportion of fault was actually attributable to that individual tortfeasor as opposed to another joint tortfeasor.” National Serv. Indus. v. B.W. Norton Mfg. Co., 937 P.2d 551, 554 (Utah Ct. App. 1997). In 1986, the Utah Legislature enacted the Liability Reform Act. See Utah Code Ann. § 78B-5-820(1) (LexisNexis 2008). [HN4] The Act replaced the rule of joint-and-several tort liability with a rule of comparative fault. A plaintiff’s “recovery of damages under the Product Liability Act is proportionate to the percentage of fault attributable to each defendant.” Yirak, 2008 UT App 210, ¶ 4, 188 P.3d 487. The Act defines “fault” to include strict liability. Utah Code Ann. § 78B-5-817(2) (LexisNexis 2008). Consequently, a plaintiff in a products-liability case may recover from each defendant only [**6] in proportion to that defendant’s fault (including strict liability).2

2 We previously noted that the legislature’s “inclusion of ‘strict liability’ in defining ‘fault’ is confusing and somewhat problematic because unlike negligence, strict liability does not require an examination of a party’s fault.” Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 14 n.5, 94 P.3d 301. “The use of strict liability in this statutory definition should be viewed only as a cause of action subject to the [Liability Reform Act], rather than changing the traditional use of the term fault to somehow include strict liability, a liability concept that is unconcerned with fault in the usual sense of culpability.” Id.

[*P10] Tension inheres between the principles of Utah’s comparative-fault statute and Utah’s products-liability statute because together they require a finder of fact to apportion relative fault to a codefendant whose liability does not depend on fault as commonly understood in tort law. In response to this tension, this court devised the passive-retailer doctrine.

[*P11] [HN5] The passive-retailer doctrine creates an exception to strict liability under the Product Liability Act for “passive retailers”–sellers who do not “participate in the design, manufacture, engineering, testing, or [**7] assembly” of a product. Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301. Under this doctrine, “a passive retailer is not subject to a strict liability claim . . . where the manufacturer is a named party to the action.” Yirak v. Dan’s Super Mkts. Inc., 2008 UT App 210, ¶ 5, 188 P.3d 487. The passive-retailer doctrine thus allows the trial court to dismiss a strict-liability claim against a codefendant when undisputed facts establish that no fact finder could, under principles of comparative fault, apportion fault to that codefendant. In this circumstance, “as long as [the actual manufacturer] is present in the suit, there remains no reason to require [a passive retailer] to incur the time and expense of defending” the action. Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301.3

3 Other jurisdictions have sought to protect passive sellers from the effects of section 402A in other ways or left them unprotected. Some jurisdictions that adopted section 402A sought to protect passive sellers with legislation prohibiting a strict-liability suit against a seller unless the seller either manufactures the product or participates in the manufacture of the product. See, e.g., Ga. Code Ann. § 51-1-11.1 (2000); Ind. Code § 34-20-2-3 (2008); Neb. Rev. Stat. § 25-21,181 (2008). Other jurisdictions have enacted legislation prohibiting strict-liability suits against passive sellers unless no remedy exists against the manufacturer. See, e.g., Del. Code Ann. tit. 18, § 7001 (1999); Idaho Code Ann. § 6-1407(4) (2010); [**8] Iowa Code § 613.18 (West 1999); Kan. Stat. Ann. § 60-3306 (Supp. 2012); Ky. Rev. Stat. Ann. § 411.340 (LexisNexis 2005); Md. Code Ann., Cts. & Jud. Proc. § 5-405 (LexisNexis 2013); Minn. Stat. Ann. § 544.41 (West 2010); Mo. Ann. Stat. § 537.762 (West 2008); N.C. Gen. Stat. Ann. § 99B-2 (2013); N.D. Cent. Code § 28-01.3-04 (2006); Tenn. Code Ann. § 29-28-106 (Supp. 2013); Wash. Rev. Code Ann. § 7-72.040(2) (West 2007). And a significant number of jurisdictions that adopted section 402A have not enacted any legislation to protect passive sellers and continue to subject passive sellers to strict liability. See, e.g., Clark v. Williamson, 129 F. Supp. 2d 956, 959 (S.D. Miss. 2000) (applying Mississippi law and holding that a passive retailer could be strictly liable in products-liability suit); Oser v. Wal-Mart Stores, Inc., 951 F. Supp. 115, 119 (S.D. Tex. 1996) (holding that a plaintiff injured by a defective shopping bag can sue the passive retailer); Nichols v. Agway, Inc., 280 A.D.2d 889, 720 N.Y.S.2d 691, 692 (N.Y. App. Div. 1994) (confirming that retailers are subject to strict-liability suits but dismissing on other grounds); Honeywell v. GADA Builders, Inc., 2012 OK CIV APP 11, 271 P.3d 88, 95 (Okla. Civ. App. 2011) (“The rationale for imposing strict liability on retailers and distributors is founded upon the public interests in human safety. . . .”).

[*P12] This court has applied the passive-retailer doctrine only twice.4 In Sanns, a van in which Sanns was a passenger rolled several times. Id. ¶ 2. Sanns sued both the manufacturer–Ford Motor Company–and the retailer– Butterfield Ford. Id. ¶ 3. We held that Butterfield Ford qualified as a passive retailer because it “did not participate in the design, manufacture, engineering, testing, or assembly of the van.” Id. ¶ 21. [**9] As a result, we concluded, “The strict liability ‘fault’ in this case, if any, lies with the manufacturer, not with Butterfield Ford, the passive retailer.” Id. Consequently, we held that “the trial court was correct to dismiss Butterfield Ford.” Id.

4 The Utah Supreme Court has yet to address or apply the passive-retailer doctrine.

[*P13] This court again applied the passive-retailer doctrine in Yirak, 2008 UT App 210, 188 P.3d 487. After discovering a piece of glass in her prepackaged salad, Yirak sued both the seller–Dan’s Super Markets–and the manufacturer–Dole. Id. ¶¶ 2, 5 n.3. However, Dan’s submitted undisputed evidence that it did not “manufacture, design, repackage, label, or inspect the prepackaged salads supplied by Dole.” Id. ¶ 7. Consequently, we held that Dan’s qualified as a passive retailer. Id. ¶ 8.

[*P14] Notably, the passive retailers in Sanns and Yirak did not Participate in the creation of the defective or unreasonably dangerous products at issue in those cases–they did not participate in the products’ design, manufacture, or testing. See Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 21, 94 P.3d 301; Yirak, 2008 UT App 210, ¶ 7, 188 P.3d 487. They were thus not “in a position to eliminate the unsafe character of the product and prevent the loss,” one of the rationales for imposing strict liability. See Hebel v. Sherman Equip., 92 Ill. 2d 368, 442 N.E.2d 199, 205, 65 Ill. Dec. 888 (Ill. 1982).

[*P15] In contrast, [**10] McQuivey presented evidence demonstrating that Fulmer did participate in the manufacture, design, and testing of the helmets that bear its name. First, Fulmer participates in helmet design. Fulmer receives sample helmets from KYL to ensure that they fit properly. One of Fulmer’s representatives stated, “[W]e might have to tell [KYL] this is tight here or loose here and they change something about the comfort padding perhaps to–to adjust the way it fits. But we work through that.” Fulmer also designs the helmets’ graphics and tags.5 Though relatively slight, this degree of involvement in helmet design distinguishes Fulmer from Dan’s and Butterfield Ford, who had no role in the design of the products they sold.

5 Fulmer’s tags contain explicit warnings, instructions for sizing, and a directive stating, “If helmet experiences a severe blow, return it to the manufacturer for competent inspection or destroy and replace it.” Below this direction, in all capital letters, the tag reads, “FULMER HELMETS, INC.”

[*P16] Fulmer also participates in the helmets’ manufacture. Fulmer performs on-site visits to KYL’s helmet factory twice annually. Fulmer examines KYL’s quality-control procedures. Furthermore, Fulmer [**11] requires that KYL manufacture its helmets in compliance with United States Department of Transportation standards, “100 percent, every helmet, all the time.” This level of involvement constitutes “participation” in the manufacturing process. See Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301.

[*P17] Fulmer also participates in the helmets’ testing. Fulmer requires that KYL test all Fulmer helmets, and Fulmer itself has the helmets tested “from time to time.” As mentioned above, Fulmer test-fits helmets and then instructs KYL to make changes accordingly. Furthermore, Fulmer has had helmets tested “both in KYL as well as in labs in the United States” to ensure that all helmets comply with U.S. standards.

[*P18] Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.” Id., § 400 cmt. d. Courts typically refer to this as the “apparent-manufacturer doctrine.” Long v. United States Brass Corp., 333 F. Supp. 2d 999, 1002 (D. Colo. 2004) (citing Yoder v. Honeywell Inc., 104 F.3d 1215, 1223 (10th Cir. 1997)). “The primary rationale for imposing [**12] liability on the apparent manufacturer of a defective product is that it induced the purchasing public to believe that it is the actual manufacturer, and . . . [thus] to purchase the product in reliance on the apparent manufacturer’s reputation and skill in making it.” Hebel, 442 N.E.2d at 203 (emphasis omitted). Although Utah has not yet addressed the question, most jurisdictions to consider the apparent-manufacturer doctrine have adopted it.6

6 See, e.g., Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir. 1962) (citing Highland Pharmacy, Inc. v. White, 144 Va. 106, 131 S.E. 198 (Va. 1926)); Davis v. United States Gauge, 844 F. Supp. 1443, 1446 (D. Kan. 1994); Moody v. Sears, Roebuck & Co., 324 F. Supp. 844, 846 (S.D. Ga. 1971) superseded by statute as stated in Freeman v. United Cities Propane Gas, Inc., 807 F. Supp. 1533, 1539-40 (M.D. Ga. 1992); Sears, Roebuck & Co. v. Morris, 273 Ala. 218, 136 So. 2d 883, 885 (Ala. 1961); Cravens, Dargan & Co. v. Pacific Indem. Co., 29 Cal. App. 3d 594, 105 Cal. Rptr. 607, 611 (Ct. App. 1972); King v. Douglas Aircraft Co., 159 So.2d 108, 110 (Fla. Dist. Ct. App.1963); Dudley Sports Co. v. Schmitt, 151 Ind. App. 217, 279 N.E.2d 266, 273 (Ind. Ct. App. 1972); Tice v. Wilmington Chem. Corp., 259 Iowa 27, 141 N.W.2d 616, 628 (Iowa 1966); Penn v. Inferno Mfg. Corp., 199 So.2d 210, 215 (La. Ct. App. 1967); Coca Cola Bottling Co. v. Reeves, 486 So.2d 374, 378 (Miss. 1986) superseded by statute as stated in Turnage v. Ford Motor Co., 260 F. Supp. 2d 722, 727 (S.D. Ind. 2003)); Slavin v. Francis H. Leggett & Co., 114 N.J.L. 421, 177 A. 120, 121 (N.J. 1935) aff’d, 117 N.J.L. 101, 186 A. 832 (N.J. 1936)); Andujar v. Sears Roebuck & Co., 193 A.D.2d 415, 597 N.Y.S.2d 78, 78 (App. Div. 1993) (citing Commissioners of State Ins. Fund v. City Chem. Corp., 290 N.Y. 64, 48 N.E.2d 262, 265 (N.Y. 1943)); Warzynski v. Empire Comfort Sys., Inc., 102 N.C. App. 222, 401 S.E.2d 801, 803-04 (N.C. Ct. App. 1991); Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593, 599 (Pa. 1968); Sears, Roebuck & Co. v. Black, 708 S.W.2d 925, 928 (Tex. App. 1986); Wojciuk v. United States Rubber Co., 13 Wis. 2d 173, 108 N.W.2d 149, 152-53 (Wis. 1961).

[*P19] As McQuivey has not urged us to adopt the apparent manufacturer doctrine here, we reserve that question for another day. We note, however, that Fulmer distributed the Blade AF-C1 helmet under its own name; typically describes itself as the “manufacturer” of Fulmer helmets on equipment safety reports filed with the National Highway Traffic Safety Administration; and puts its name on tags inside its helmets, certifying that they meet the applicable safety standards.

[*P20] Even without resort to the apparent-manufacturer doctrine, we conclude that the district court erred in granting summary judgment for Fulmer as a passive retailer. See [**13] Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301. Although KYL principally conducted the manufacturing, design, and testing of the helmets, [HN6] the passive-retailer doctrine does not ask whose role in manufacturing a defective product was the greatest; rather it asks whether a party “participate[d] in the design, manufacture, engineering, testing, or assembly of” the product. Id. This follows from the passive-retailer doctrine’s rationale, which is to dismiss codefendants to whom the finder of fact will, should the matter go to trial, inevitably apportion no fault.7

7 McQuivey also argues that the court erred in granting summary judgment in Fulmer’s favor on two other grounds: first, that “the passive-retailer doctrine is inappropriate” here because “the alleged manufacturer was never a proper party to this case,” and second, that “even if the doctrine otherwise applied, only the strict-liability claims against Fulmer should be dismissed.” Because we determine that the court erred in ruling that Fulmer qualifies as a passive retailer, we do not address these arguments.

CONCLUSION

[*P21] We reverse the district court’s judgment of dismissal and remand the case for further proceedings.


Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.

If you purchase a helmet that only protects part of your head, then you cannot sue for injuries to the part of your head not protected.

Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

State: Georgia, US Court of Appeals for the Eleventh Circuit

Plaintiff: Lois Elaine Wilson

Defendant: Bicycle South, Inc.

Plaintiff Claims: Product Liability (breach of warranty, strict liability, and negligence)

Defendant Defenses: Assumption of the Risk and Open and Obvious

Holding: For the defendants

Year: 1990

This case is fairly easy to understand, even though the opinion is quite complicated. The plaintiff was riding her bike from Florida to California. While traveling through Georgia she crashed suffering head injuries.

She sued claiming the rear wheel of the bike collapsed causing her crash. She claimed her head injuries were caused because the helmet failed to protect her head.

She sued the wheel manufacturer, Opportunities Inc., the bicycle manufacturer, Trek Bicycle Corporation and the retailer Bicycle South, Inc. The three defendants were found not liable at trial.

The jury did find the helmet manufacturer, Skid Lid Manufacturing Company liable for the plaintiff’s head injuries. The majority of the decision reviews the helmet issues. The plaintiff purchased the helmet for her ride. The helmet was a “half helmet” which only covered the top half of her head. The helmet came down to about the top of her ears.

The jury found in favor of the plaintiff on the head injury issue caused by the helmet manufacturer. The defendant Skid Lid moved for a judgment notwithstanding the verdict, (JNOV), which the court granted. The defendant helmet manufacturer appealed the decision.

A JNOV is effectively a motion filed by the losing party and the judge overrules the jury. This is a motion that is rarely granted and only done so to overcome extreme or unreasonable jury verdicts. The judge must find that no reasonable jury could reach the decision that was reached by the jury in the case. Normally this is because there are insufficient facts to support the claims or the jury applied the law incorrectly.

In this case, the JNOV seemed to have been entered because the jury ignored the defenses presented by the defendant.

Summary of the case

Georgia at the time of the decision allowed several defense to product liability claims, two of which were: Assumption of the risk and the “open and obvious” defects. Variations of these defenses are available in some, but not all states. The trial judge in this case granted the JNOV based on the Assumption of the Risk defense. The appellate court looked at both of these defenses.

The open and obvious defense states a plaintiff cannot recover from a defendant when the alleged defect is patent and obvious to the user.

The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. This determination regarding the peril is made on the basis of an objective view of the product. In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like.

This defense is not based on a defect in the product, only that the product will not or will do something that is patent, and open and obvious.

The defense applied here because the plaintiff when purchase the helmet purchased one that only covered part of her head. It was “obvious” that the helmet would not protect the part of her head that the helmet did not cover.

The assumption of risk defense is slightly different, but also applicable in this case. If the consumer knows of a defect in the product, is aware of the danger presented by the defect and proceeds to use the product anyway the plaintiff is barred from recovering. “The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head.”

The assumption of risk defense in Georgia is slightly more difficult to prove because the injured plaintiff must have known about the defect. (However, a defect only becomes one in pleadings after an injury has occurred.) What I mean by this is, as a manufacturer should point out the limitations of the product in the information supplied by the product. This provides the necessary notice to a user of the defect and provides a defense to the manufacturer.

The court also ruled on evidentiary issues in the case which are not important in understanding these issues.

So Now What?

For manufacturers, selling a product means more than just point out the great features of the product. You must warn the consumer of any problems or issues with the product and you must point out what the product cannot do.

That does not mean that you should point out your bicycle won’t get you to the moon. It might mean you should point out that the bicycle should only be ridden on roads if it is a road bike. Videos online show road bikes being ridden everywhere, but that does not mean as a manufacturer you should be liable when someone tries to ride the Monarch Crest Trail on your road bike.

As a retailer, you should point out the differences in products trying to specifically point out short comings about a product. This helmet has a MIPS system in side, this one does not.

Both of these defenses are easy to rely on, however not all states still allow the use of these defenses.

What do you think? Leave a comment.

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Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

Lois Elaine Wilson, Plaintiff-Appellant, v. Bicycle South, Inc., a Georgia Corporation, et al., Defendants-Appellees

No. 89-8522

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

October 30, 1990

SUBSEQUENT HISTORY: As Amended.

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Georgia. No.1: 85-cv-2658-CAM; Moye, Jr., Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Robert H. Benfield, Jr., Middleton & Anderson, Atlanta, Georgia, for Appellant.

For Trek Bicycle: Stephen F. Dermer, Smith Gambrell & Russell, Atlanta, Georgia.

For Bicycle South: Jonathan Mark Engram, Swift Currie McGhee & Hiers, Thomas E. McCarter, Atlanta, Georgia.

For Opportunities, Inc.: Tommy T. Holland, Carter & Ansley, Christopher N. Shuman, Atlanta, Georgia.

For Skid Lid: Palmer H. Ansley, Long Weinberg Ansley & Wheeler, David A. Sapp, Atlanta, Georgia.

JUDGES: Clark, Circuit Judge, Morgan and Hill, * Senior Circuit Judges.

* See, Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.

OPINION BY: HILL

OPINION

[*1504] HILL, Senior Circuit Judge

I. INTRODUCTION

This appeal concerns a products liability action based upon alleged breach of warranty, strict liability, and negligence resulting in injuries to Lois Elaine Wilson (“Wilson”), appellant. Wilson incurred head injuries during an accident in Georgia while on a cross-country bicycle trip. The jury returned a verdict in favor of Wilson and against one defendant on a bicycle helmet defect claim, and against Wilson and in favor of three defendants on a bicycle wheel defect claim. The district court granted a judgment notwithstanding the verdict on the helmet claim. Plaintiff appeals [*1505] this grant and also alleges several other errors by the district court concerning the bicycle wheel claim.

A. Issues Presented

Appellant raises four distinct categories of issues on appeal. First, appellant claims that the district court erred in granting appellee Skid Lid Manufacturing Company’s (“Skid Lid”) motion for a judgment notwithstanding [**2] the verdict. Second, appellant contends that the district court improperly commented on the evidence. Third, she asserts that the district court committed reversible error by refusing to admit “similar accident” evidence. Finally, appellant maintains that the district court erred in charging the jury on the defense of “legal accident.”

We hold that the trial court did not err in granting the JNOV. Nor do the trial judge’s comments on the evidence provide cause for reversal. Similarly, we find appellant’s third and fourth contentions to be meritless.

B. Factual and Procedural History

On January 6, 1983, appellant purchased a Trek 614 touring bicycle. Trek Bicycle Corporation (“Trek”) manufactured the bicycle, Opportunities, Incorporated (“Opportunities”) assembled the bike’s rear wheel according to Trek’s specifications, and Bicycle South, Inc. (“Bicycle South”) sold the bike to appellant. The latter three parties will be referred to collectively as “the bicycle defendants.” On February 9, 1983, appellant also purchased, from a company not a party to this lawsuit, a bicycle helmet manufactured by Skid Lid. Rather than purchase a helmet covering her entire head, appellant chose [**3] one that only covered the top half of her head, coming down to about the top of her ears.

Wilson purchased the bike and helmet for a cross-country bicycling trip from Florida to California. Eight days into her trip, on April 23, 1983, Wilson sustained head injuries in a fall from the bicycle while she was riding downhill on a two-lane Georgia highway between Plains and Americus, Georgia. Between January 6 and April 23, Wilson had ridden approximately 1200 to 1600 miles on the bicycle.

The cause of appellant’s fall is disputed by the parties. Appellant maintains that the rear wheel collapsed into a saddle-like shape as a result of an improper manufacturing process and a failure to retrue the spokes of the wheel after the rim was assembled. Under this theory, the tension in the wheel, which was not released after the rim was formed and the wheel assembled, caused the spokes to loosen after use and led to the collapse. The bicycle defendants, on the other hand, maintain that the fall did not result from the wheel collapse, but that the wheel collapsed as a result of appellant’s fall from the bike. 1

1 The actual cause of the fall does not affect the issues currently before this Court.

[**4] The point of initial impact between Ms. Wilson’s head and the pavement was behind her left ear and below the edge of the helmet. As a result of the impact, she claims that she sustained three injuries. The first two, a basilar skull fracture and occipital scalp laceration, were not particularly serious and do not comprise the more serious damage. The more serious injury was a “contre-coup” (an injury to the opposite side of the head from the point of initial impact) brain contusion.

Alleging defects in the bicycle wheel and helmet, Ms. Wilson filed a complaint in this products liability action based upon breach of warranty, strict liability, and negligence. During the trial, appellant attempted to introduce evidence of a prior bicycle wheel defect claim brought by another party against Trek, Opportunities, and another bicycle store, alleging that the incidents were substantially similar. The trial court excluded the earlier incident.

At the beginning of his charge, the trial judge explained to the jury:

As a federal judge, I have the right, power, and duty to comment on the facts, to express my opinion with respect thereto . . . but remember, in the last analysis, every factual issue [**5] in this case must be decided by you, by you alone, and anything that anybody else in this room says [*1506] about the facts is a mere opinion, not binding upon you.

Subsequently, referring to witness testimony, the judge again emphasized that “as sole judges of the facts, you, the jury, and you only, must determine which of the witnesses you believe and what portion of their testimony you accept and what weight you attach to it.” Prior to analyzing and giving his opinion of the evidence that Ms. Wilson presented, 2 the judge again cautioned the jury that “you, as jurors, are at liberty to disregard each, every, and all comments of the court in arriving at your own findings of the facts.” At the conclusion of his remarks, the trial judge further emphasized:

Let me stress as strongly as I can that you, the jury, are the sole and only judges of the facts. The past several minutes I have been giving you [**6] my opinion with respect to matters committed solely to your decision, not mine. My comments are and can only be expressions of a personal opinion and are not binding on you in any way, shape, or form. Remember that in considering every issue in this case, including those to which I have just alluded, you must resort to your own recollection of the evidence, not that which I have just stated. . . . You must, in the diligent performance of your duty, rely on your recollection of all the evidence and not merely that which I may have called to your attention and emphasized.

2 The trial judge focused especially on items of derogatory information with respect to appellant’s expert, Mr. James Green.

On April 13, 1989, the jury returned a verdict in favor of appellant against appellee Skid Lid in the amount of $ 265,000 on the helmet claim. On the bicycle wheel claim, the jury returned a verdict against appellant and in favor of the bicycle defendants.

On April 21, 1989, appellee Skid Lid moved for a judgment notwithstanding the verdict, and on May 24 the trial court entered an Order granting the motion. The court did so because it found that Ms. Wilson had “assumed the risk of injury as to parts of her body patently not covered by the helmet.”

II. DISCUSSION

A. The Helmet & the Judgment Notwithstanding the [**7] Verdict

[HN1] We review the district court’s grant of a JNOV under the same standard as the district court used in determining whether to grant a JNOV. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):

All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” A motion for judgment n.o.v. should be granted only where “reasonable [people] could not arrive at a contrary verdict. . . .” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (citations omitted)

In applying this standard for the sufficiency of evidence, we also look to Georgia substantive law to determine whether Skid Lid deserved judgment as a matter of law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Salter v. Westra, 904 F.2d 1517, 1524 (11th Cir.1990).

Defendants in products liability actions have asserted two similar defenses in attempting to steer clear of liability, assumption of the risk and the “open and obvious [**8] rule.” 3 While the trial judge in this case based the JNOV on assumption of the risk, we also address the open and obvious rule because affirmance of the JNOV is proper even if based on a different rationale. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986).

3 This rule is also known as the “patent danger rule” and has its roots in a New York decision involving negligence law, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). New York later abandoned the rule in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).

[*1507] We need not reach the assumption of the risk issue if the helmet was not defective because Skid Lid would have breached no duty to Ms. Wilson. We thus initially address the open and obvious rule. [HN2] The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga. App. 811, 295 S.E.2d 183, 185 (1982). This determination [**9] regarding the peril is made on the basis of an objective view of the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 393 S.E.2d 64, 66 (1990) (certiorari denied June 21, 1990). In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like. Stodghill is instructive in this respect. In Stodghill, the plaintiff was using a bulldozer manufactured by the defendants to clear felled trees from a construction site when a tree jumped over the bulldozer blade and struck him in the chest. The plaintiff claimed that the machine was defective because it had no protective metal cage surrounding the driver’s seat. The Georgia Court of Appeals recognized that the plaintiff “was obviously aware that the bulldozer he was operating had no protective cage and that the absence of this safety device exposed him to the danger of being injured by anything which might strike the driver’s compartment.” Id. 295 S.E.2d at 184. The court concluded that

“because the failure of the appellees in this case to install a protective cage over the driver’s seat of the bulldozer was an obvious characteristic of the machine [**10] which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed, it cannot reasonably be considered a design or manufacturing defect under Georgia law.”

Id. at 185.

Similar to the absence of the protective cage on the bulldozer, it is or should be apparent to one who purchases an article of clothing or protective gear that the article can only protect that portion of the body which is covered. A person purchasing a bullet proof vest cannot realistically claim that he expected it to protect him from a bullet in the leg. Likewise, one purchasing a sleeveless t-shirt cannot protest that it should have protected him from a scrape on the arm. In the case at bar, rather than selecting a helmet covering her entire head, appellant elected to purchase a helmet that she knew covered only the top half of her head. She did know, or certainly should have known, that the helmet with less extensive coverage would not protect her from an impact to an area not covered by the helmet. Unlike a full helmet, the half-helmet was not designed to protect against impacts anywhere on the head. The extent of coverage was “an obvious characteristic [**11] of the [helmet] that created no hidden peril and did not prevent the [helmet] from functioning properly for the purpose for which it was designed.” Stodghill, 295 S.E.2d at 185. We thus find, as a matter of law, that the helmet was not defective under Georgia law. 4

4 We note that Georgia courts have been careful to avoid treating the American public as children where a peril is obvious or patent and the product thus not defective. In Weatherby, the five-year old plaintiff had been a passenger on an off-road motorcycle that did not have its gas cap in place. During the ride over uneven terrain, gasoline splashed from the open tank and ignited, causing burns to the plaintiff. The court found that an open fuel tank “surely suggests the possibility of spillage,” that because the fuel tank is located above the engine “gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug,” and that the dangers of spilled gasoline coming into contact with an engine are generally known. 393 S.E.2d at 67. The court consequently concluded as a matter of law that the peril of an open fuel tank resting over the engine and its spark plug was “an obvious or patent peril,” and that the product was thus not defective. Id. at 68.

[**12] Even if the failure to cover the full head were a defect, it is still beyond peradventure that appellant assumed the risk of injury to the parts of her body patently not covered by the helmet. [HN3] Under Georgia law, “‘if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is [*1508] barred from recovery.'” 5 Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975) (citation omitted). The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head. Had appellant, somehow, been unaware that the helmet only partially covered her head, the result might be different. As counsel for appellant admitted at oral argument, however, there is no evidence that she thought the helmet covered more of her head than it did cover, or that she believed it would protect her from injury to parts of her body not covered. Nor do we find, after our careful review of the transcript, any testimony to that effect. As for the second portion of the test, unreasonable use, it seems axiomatic [**13] to say that it is unreasonable to use a helmet to protect a portion of the body that the helmet clearly does not cover.

5 This test, in contrast to the open and obvious rule, looks to the subjective perceptions of the user or injured party. Another difference between assumption of the risk and the open and obvious rule is that while the latter places the burden of proof on the plaintiff, the former places it on the defendant. Weatherby, 393 S.E.2d at 66. See also Annotation, Products Liability: modern status of rule that there is no liability for patent or obvious dangers, 35 A.L.R. 4th 861, 865 (1985) (discussing open and obvious rule and the differences from assumption of the risk).

In sum, the district judge properly granted appellee Skid Lid’s motion for a JNOV.

B. Comments on the Evidence

At the close of the case, the district judge employed the time-honored, though little used, right and duty of a federal trial judge to comment on the evidence. As the Supreme Court stated in Quercia v. United [**14] States, 289 U.S. 466, 469, 53 S. Ct. 698, 698-99, 77 L. Ed. 1321 (1932):

[HN4] In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. (citation omitted) In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. (citations omitted) Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and [**15] light to laymen. (citation omitted)

[HN5]

The trial judge will not be reversed unless his comments “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” Id. at 472, 53 S. Ct. at 700. See also United States v. Hope, 714 F.2d 1084, 1088 (11th Cir.1983) (“[a] trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error”). 6 It is only where [*1509] this prejudice exists that the substantial rights of the parties are affected and Fed.R.Civ.P. 61 permits disturbing a judgment. 7 In assessing whether this prejudice exists and has affected the parties’ substantial rights, we consider the record as a whole and not merely isolated remarks. See Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 334-335 (5th Cir. Unit B June 1981). “The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.” Bass v. International [**16] Bhd. of Boilermakers, 630 F.2d 1058, 1065 (5th Cir.1980) (citations omitted).

6 Other circuits have adopted similar language regarding a trial judge’s right to comment on the evidence. See, e.g., White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990); Vaughn v. Willis, 853 F.2d 1372 (7th Cir.1988); United States v. Munz, 542 F.2d 1382 (10th Cir.1976), cert. denied, 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 555 (1977); Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir.1967); Meadows v. United States, 144 F.2d 751 (4th Cir.1944); A number of practitioners and commentators have also assessed the role of the judge in a jury trial. See, e.g., Bancroft, Jury Instructions, Communications, Juror Substitutions and Special/Partial Verdicts: Selected Topics — The Principal Law, 340 Prac.L.Inst. 611 (1987); Loeffler, Project — Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987 (III. Trial: Authority of the Trial Judge), 76 Geo.L.J. 986 (1988); Murphy, Errors in the Charge, 14 Litig. 39 (1988).

[**17]

7 [HN6] Fed.R.Civ.P. 61 provides in part:

“No error . . . is ground for granting a new trial . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

Appellants allege that the district judge went too far in commenting on the evidence and on the testimony of their expert, Mr. Green. We do not doubt that a trial judge could misuse his authority. 8 After careful review of the record, however, while we are not prepared in this case to suggest the outside limits on a trial judge’s comments, we are satisfied that the district judge here did not overstep his bounds. As recounted in Part I.B. of this opinion, he went to great lengths to assure that the jury understood that it was the sole fact-finder in the case. 9 When his remarks are considered in their entirety, on the facts of this case we find no prejudice affecting the substantial rights of the parties.

8 Perhaps one of the best examples of a jury charge that would constitute an abuse of authority today, but was permitted prior to Quercia, is Judge Emory Speer’s eight and one-half hour, 92 page charge in United States v. Greene, 146 F. 803 (S.D.Ga.1906), cert. denied, 207 U.S. 596, 28 S. Ct. 261, 52 L. Ed. 357 (1907). In testimony before a congressional committee looking into the possibility of impeaching Judge Speer, Alexander Lawrence (one of Greene’s defense attorneys) characterized the judge and his charge as follows:

He knows the jury, knows how to play on their passions, on their prejudices, as no living man that I have seen could do it; he has a faculty for marshalling evidence that I have never seen another living man able to marshal; and in that Greene & Gaynor case he charged that jury for eight hours and I will challenge any six prosecuting attorneys in the United States, from the Attorney General down, all of them together, to take that mass of testimony taking three months’ time that Judge Speer heard, and then put it down in as ingenious an argument against the defense as Judge Speer put it in that thing. It was a masterpiece of oratory, but a very poor thing when you come down to look at it from a judicial standpoint.

H. Res. 234, 63rd Cong., 2d Sess. (1914) (Minority Report of Representative Volstead).

Since, Quercia, many appeals courts have overturned cases where the trial judge has gone too far. See, e.g., Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11 (2d Cir.1981) (trial judge’s comments to the jury gave all the arguments for the defendant, being “tantamount to directing a verdict” for defendant); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 761 (5th Cir.1979) (trial judge’s mistaken assertions virtually destroyed appellant’s circumstantial case, requiring reversal); Maheu v. Hughes Tool Co., 569 F.2d 459, 471-472 (9th Cir.1978) (trial judge’s comments amounted to “personal character reference” for witness and thus “went too far”).

[**18]

9 It seems that the jurors responded to the trial judge’s direction that they were the sole fact-finders. The judge brought to their attention that appellant’s expert had been prepared to testify that the helmet was defective because of one set of facts and then shifted his reasoning when that set of facts was disproven; nevertheless, the jury still awarded appellant $ 265,000 against the helmet manufacturer.

In the course of his remarks, appellant also contends that the trial judge improperly restricted her case to the testimony of her one expert, Mr. Green. In stressing the importance of Mr. Green’s testimony to appellant’s case, the judge stated as follows:

In this case, as in every case, there are the two big main issues: one, liability, and, two, the amount of any damages proximately flowing therefrom. The plaintiff has the burden of proving each and every element of the plaintiff’s case. The plaintiff’s entire case here, and in meeting the elements which must be proved, rests upon the expert testimony, [*1510] that is, the expert opinion, of Mr. Green. Except for Mr. Green’s testimony, the plaintiff [**19] has not made out a case of liability. With Mr. Green’s testimony, the plaintiff has made out a legal case on liability; therefore, the court suggests that the first, immediate, and crucial issue in the case for you to determine is the credibility or the believability of Mr. Green.

After studying the record, we find no merit in appellant’s contention. We are inclined to agree with the trial judge that, without Mr. Green, the case would not have been one for the jury.

In sum, we find that on the facts of this case the trial judge’s comments to the jury, when taken as a whole, neither excited a prejudice affecting the substantial rights of the parties nor incorrectly instructed the jury.

C. The Allegedly Similar Accident

Appellant argues that the trial court erred by refusing to admit evidence of the collapse of another wheel manufactured by appellees Trek and Opportunity. Appellant sought to show appellees’ notice of a defect in the wheel, the magnitude of the danger, appellees’ ability to correct a known defect, the lack of safety for intended purposes, the strength of the product, the standard of care, and causation.

The trial judge denied the proffer on the grounds that the evidence [**20] was not probative because of the necessity for a considerable amount of extrinsic evidence to determine whether the incidents were sufficiently similar to meet the standards of Fed.R.Evid. 403. 10 [HN7] A trial judge has broad discretion over the admission of evidence, Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985), and we find that the district judge did not abuse his discretion. 11

10 The cause of the alleged similar incident had never been established because that case settled out of court. The parties in the instant case vigorously dispute the actual cause, demonstrating that even had the trial court reached the issue of whether the two incidents were similar this issue would have required a trial within a trial.

11 Because of our disposition of this issue, we need not reach the question of whether the two incidents were actually similar, and if so, whether the prior incident would have been properly excluded under Fed.R.Evid. 403.

D. The Charge on “Legal Accident”

In his [**21] instructions to the jury, the judge included a charge on “legal accident.” 12 To determine whether such a charge is appropriate, we first look to Georgia substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). [HN8] Georgia law permits a charge on “legal accident” where there is evidence in the record authorizing a finding that the occurrence was an “accident.” 13 Chadwick v. Miller, 169 Ga. App. 338, 344, 312 [*1511] S.E.2d 835, 840 (1983). 14 Where appropriate, the charge is valid in a products liability case. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 579, 346 S.E.2d 923, 926 (1986).

12 This portion of the charge reads as follows:

Now, let me tell you that the mere fact that an accident happened or an occurrence happened from which injury stemmed standing alone does not permit a jury to draw any inference that the occurrence was caused by anyone’s negligence or by any defect.

Now, I have used the word “accident” loosely, as I think is commonly the practice, is interchangeable with the word occurrence producing injury, but in Georgia law accidental injury means, in connection with personal injury actions such as this, any injury which occurs without being caused by the negligence either of the plaintiff or of the defendants. The idea of accident removes responsibility for the cause of the injury if found to have occurred by reason of a legal accident as defined under Georgia law, that is, one which is caused by the negligence neither of the plaintiff or the defendants.

It is necessary that you find from a preponderance of the evidence in this case, in order to find for the plaintiff, that the occurrence and/or resulting injuries were the result of defect and/or negligence and/or breach of warranty to the exclusion of legal accident, as I have defined that term to you, because the plaintiff has the burden of proof, as I will charge you later, to demonstrate by a preponderance of the evidence that the occurrence did, in fact, result from defect and/or negligence and/or breach of warranty, to the exclusion of legal accident.

[**22]

13 [HN9] “Accident” is defined as “an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick, 169 Ga. App. at 344, 312 S.E.2d 835.

14 Appellant cites Seaboard Coastline R.R. Co. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), for the proposition that a charge on “legal accident” can be given only where there is no evidence of negligence on the part of either party. The Georgia Court of Appeals recognized in Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 386 S.E.2d 696, 697 (1989), however, that Delahunt had misstated the law in Georgia.

Because the manner of giving jury instructions is procedural rather than substantive, it is governed by federal rather than state law. McCullough, 587 F.2d at 759. In reviewing alleged errors in jury instructions, we must determine whether the trial court’s charge, considered as a whole, “sufficiently instructs the jury so that the jurors understand the issues involved and are not misled.” Mark Seitman & Assocs., Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th [**23] Cir.1988) (citation omitted). We will only reverse if we are left with “a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted).

After careful review, we find evidence in the record that supports a charge on legal accident as defined by Georgia law. We are therefore satisfied that the district judge properly guided the jury with respect to this issue.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993); and,

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

Hawaii Revised Statutes, Section 663-1.54

Badly written statute which was already full of holes was turned absolutely worthless by Hawaiian Federal District Court Decision. You cannot give up the best defense you have when you try and gain more defenses.

In Wheelock vs. Sport Kites

Plaintiff: Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors

Defendant: Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation

Plaintiff Claims: Negligence, Gross Negligence and Product Liability

Defendant Defenses: Release

Holding: Holding for the Defendant on the Negligence claim and for the Plaintiff on the Gross Negligence and Product Liability claims.

In King v. CJM Country Stables

Plaintiff: John King and Patricia King

Defendant: CJM Country Stables

Plaintiff’s Claims: Negligence, Negligence Per Se, Strict Liability, Intentional, Negligent Infliction of Emotional Distress Loss of Consortium, Punitive Damages, Respondeat Superior

Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute

Holding: For the Plaintiff

Tourists are the life blood of the outdoor recreation industry. No place does that ring any truer than Hawaii. Without tourists who are there for a vacation or as a stop on a cruise ship, Hawaii’s economy would grind to a stop.

In an effort to limit liability for outdoor recreation activities, the recreation providers passed a law attempting to reduce or prevent lawsuits for injuries tourists received recreating.  However, this Hawaiian law backfired by eliminating the use of releases a defense against a claim in the statute.

To set the stage for Hawaii’s move towards recreation legislation, it is important to acknowledge the development of Hawaiian common law.  The landmark case, Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993), was the first time the Hawaiian courts dealt with whether an express release of liability bars all claims of negligence.  Wheelock plunged to his death while paragliding when all the lines connecting the canopy to his harness broke.  Wheelock’s wife sued, even though her husband signed a waiver releasing Sport Kites.  The court upheld the release for negligence, declaring that Wheelock assumed the risk of paragliding.

The court did not allow the release to bar claims for gross negligence and the product liability claim.

Despite the Wheelock decision, the statewide Activity Owners Association of Hawaii believed litigation over recreation accidents needed to be reduced. The belief was it would lower insurance premiums and promote business growth. (See Ammie Roseman-Orr, Recreational Activity Liability in Hawai’i: Are Waiver Worth the Paper on Which They Are Written?, 21 U. Haw. L. Rev. 715.) Without a law, every accident had the opportunity to test the waters of the legal system in hopes of a reward.  The Recreational Activity Liability Statute was enacted in 1997 to reduce recreation accident litigation’

§ 663-1.54.  Recreational activity liability.

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

This statute superseded the common law, which developed through Wheelock and the cases preceding it.

The first case to review the statute was King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511. In this case, the plaintiff was on a seven-day cruise that left Vancouver and went to Hawaii. While in Hawaii, the plaintiff booked a horseback ride through the cruise, with the defendant stable. While riding, the plaintiff was bit by another rider’s horse. She sued.

The court immediately reviewed the above Hawaiian Recreational Activity Liability Statute. Reading the statute the court concluded:

…these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries.

The court looked at the language of the release which states the trier of fact must determine if the injuries were caused by the activity, or in this case, the horse. The court found that under the statute, the court could not support the defendant’s motion for summary judgment because the statute “…explicitly precludes waiving liability for negligence.”

Since there was a genuine issue of material fact, meaning there were facts important to the case that had two different versions or interpretations (duh!) then the jury had to decide the case no matter what. The statute placed a burden on the plaintiff that was greater than the normal burden of proof, however the decision placed a greater burden on defendants in the increased cost of litigating cases.

…whether Defendant was negligent; and the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

So?

The statute left an enormous hole that will allow every injured party to recover something. The statute states that an “inherent risk” must be determined by the trier of fact, and that negligence cannot be an inherent risk. Consequently, the statute is worthless.

It gets worse. Under the previous common law, the judge could determine the inherent risk and grant summary judgment. In the case of Wheelock, the judge determined that, as a matter of law, equipment failure is an obvious risk of paragliding and set this as a precedent for future paragliding cases.  The recreation statute, on the contrary, declares that the trier of fact must determine the inherent risks of the activity. The trier of fact is the jury. Therefore, every claim will go to trial. That increases the cost and increases the chance that a settlement will occur to reduce the cost of litigation.

Summary judgment cannot be granted because a jury trial must be held to determine if the risk is inherent.  The cost of litigating jury trials will be substantially higher than the cost of a motion for summary judgment.  A precedent cannot be set because it is determined, as a matter of fact, so the inherent risks must be determined in every case.

Even cases with identical inherent risks and injuries must be brought before a trier of fact, with the possibility for differing results.  Second, the statute explicitly states that providers will be liable for negligence.  Wheelock previously determined negligence could be an inherent risk that customers assumed when they signed the waiver for, thereby releasing the provider from liability.  The statute no longer allowed the customer to assume the risk of negligence, making the statute a major step backward for activity providers.

So Now What?

Although a good effort by the Activity Owners Association of Hawaiian, they probably wrote the legislation without help from attorneys or those knowledgeable in how the statute would be applied (someone who had been in a courtroom with a suit and briefcase).

The statute is great in its intent; the actual way it was written makes the statute the best thing that could happen for any injured person in Hawaii. No matter what, this statute is going to allow the plaintiff to recover because the cost of fighting every claim through trial is at least $50,000 or more. Consequently, it will always be cheaper to settle than to sue.

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Sometimes you get screwed; here Petzl was shafted by the court.

In this product liability case, improper use of a climbing harness at a climbing wall led to a lawsuit. The injured climber was climbing at the gym and helped by an untrained employee. In this case, when a judge wants you to pay, you are going to suffer.

In this case, a manufacturer (Petzl) sold climbing harnesses to a climbing wall builder (Sport Rock International, Inc.) who sold a harness to a New York- climbing gym. A gym employee attached a beginner climber to the harness using a gear loop rather than the normal tie in points. The employee had little training and knew not to tie into the gear loop but accidentally did so. The beginning climber fell thirty feet when the gear loop ripped and was injured.

Anaya v Town Sports International, Inc., et al., 2007 NY Slip Op 7875; 2007 N.Y. App. Div. LEXIS 10819

Plaintiff: Joseph Anaya

Defendant: Town Sports International, Inc., et al., Sport Rock International, Inc., et al. (et al in this case means and others, including Petzl America, Inc.)

Plaintiff Claims: negligence and strict products liability (defectively designed and insufficient warnings)

Defendant Defenses:

Holding: mostly for the plaintiff

The plaintiff sued under theories of negligence and strict product’s liability. The strict product’s liability claims were for defective design of the harness and insufficient warnings on the harness. The warning issue was specifically for failure to warn of where the correct tie in point on the harness was located.

The climbing wall was also sued for negligence and product liability. The climbing wall settled with the injured plaintiff and was not part of this lawsuit. In this case, the climbing wall was a retailer because the harness, although not technically sold to a consumer, was moved into the consumer market by the climbing gym. In a product liability lawsuit, all entities in the chain of sale from the manufacturer to the consumer are brought into court.

The climbing wall and manufacturer filed separate motions for summary judgment, and the trial court granted the motions. The plaintiff appealed, and the appellate court reversed the decision of the trial court and sent the case back down for trial.

Summary of the case

To prove a case for product liability based on defective design in New York the plaintiff must prove “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury….” This argument is similar to the proximate causation argument for a simple negligence claim; however, it is reversed. The plaintiff must prove he was injured first and that the cause of his injury was substantially caused by the design flaws of the product.

With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner”

In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design”

This test is a little more reversed than you first might think about it. The reasonable man test is not that of the manufacturer but of someone in the community with the average knowledge and experience of a person in the community. For those things, we all know and understand such as driving, eating at a restaurant or going to a movie, the test makes sense. We understand how everything works and what we believe is best because we have experienced it.

However, for those activities or actions only practiced or experienced by a few, that test creates an education problem. You must educate the judge and the jury and convince them that the standard you are arguing is reasonable. This is difficult when they may have no idea what you are talking about.

This is a no-win test for the harness manufacturer because attempting to argue that more warnings would either defeat the use of the harness, defeat the ability to use the harness, or cost too much to create and attach to the harness is simply impossible to do. That means the test is comparing the cost of adding additional labels that warn of the risk of tying into a gear loop versus the potential for injury. The potential for injury is almost absolute, thus the manufacturer is going to fail that test 99 times out of 100 if not all the time.

For rock climbing, it is impossible to meet the test in most situations because so few people understand rock climbing. They have no experience in tying into a harness and climbing a wall. To many the whole concept is alien and scary.

While a few people who are not climbers may understand how a harness works, it is likely that knowledge will be based on work harnesses, which have no gear loops and can only be used one way. This difference alone leads to confusion and misunderstanding. If the government, OSHA, does not allow or require gear loops why did the climbing wall manufacturer have them on its harness. The harness is only seen as safety item, not as a way to haul gear and a chalk bag….as well as catch a fall.

The court made this conclusion.

Since the harness was undoubtedly meant to bear the weight of a climber, it was reasonably foreseeable that a climber might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight.

Simple statement for the court to make. The harness is meant to catch the wear in a fall; therefore, all parts of the harness should be able to catch the wearer in a fall.

The manufacturers of climbing harnesses make the gear loops appear flimsy so that a climber would know not to tie into a gear loop. Whether this is an effective way to warn people that a gear loop is not meant to catch a fall was determined by the court to be a question of law to be determined by the jury. Consequently, the court had issues and did not reverse the trial court and sending the case back for trial.

The failure to warn argument was then reviewed by the court. The test of failure to warn is “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known.”

Petzl warned about the gear loop in the manual. There was also a small label with a skull and crossbones on it, which directed the user to read the manual. The flaw in this situation is the harness had been sold to a climbing wall where it would be used by dozens of climbers, none the owner of the harness and none having access to the manual.

An expert witness for the plaintiff testified that the skull and crossbones label was insufficient to give rise to notice to the consumer of the risk of tying into the gear loop. Here again, the question of fact was one that had to be determined by a jury.

What makes this case so difficult to accept is, the gear loops and labels used by Petzl are standard in the industry. We, in the industry are used to the labels and understand them. Again, the test is not of someone in the industry but of a reasonable man walking down any street, in any town USA.

The defendants then argued that the employee of the climbing gym was an intervening person between the defendant’s acts (making and selling the harness) and the injury. However, the judge rejected this argument because the intervening act cannot be a defense if it is foreseeable that someone would tie into a gear loop.

The manufacturer admitted to knowing of other cases in which people tied into the gear loop of harnesses. This knowledge then eliminated the defense that the injury was unreasonably foreseeable. This test looks at whether or not the average person in the community could guess that a person would tie in incorrectly and whether this knowledge should have been known by the manufacture. Since the manufacturer knew of similar situations then it was foreseeable.

One of the issues that jumps out of this case in reading the decision, is the court wanted to use language that assisted the plaintiff or at least was incorrect. A perfect example was calling the belay rope the safety line.

So Now What?

If you are a manufacturer, you must make sure that your warnings are sufficient that people not associated with the industry can understand their meaning. Here the appellate court had probably never worn a harness and could not understand or see the risk the warning label was attempting to identify.

If believe your market is big enough, then selling a harness to beginners (climbing gyms) that is simple and requires no warning labels might work. With no opportunity to tie into anywhere but the one tie point you eliminate this need. However, you have also eliminated part of the market that wants to get a beginning harness that can grow as their experience does. I.e. a harness that has a gear loop.

Another way would be to eliminate the warnings found in the manual and permanently attach them to the harness. A laminated or plastic card could hang from the chalk bag loop and be obvious to any climber. Beginners are not going to worry about 10 grams of weight the warning card would add to the harness. Sell the harness only to climbing gyms or rope’s courses, etc. and supply a dozen cards with each harness. Require the purchaser to put a new card on the harness anytime a harness is found without one.

Another possibility is to create a more direct relationship between the manufacturer and the user. Not the consumer but climbing walls, zip lines, rope’s courses, and guide services, etc. This relationship, if contractual (and in writing) can say that for a discount, the parties will indemnify each other, follow the rules and consider the relationship a commercial transaction, not that of a consumer transaction.

Even though Petzl had the requisite warning label on its harness, and even though it is common knowledge among anyone with any experience as a climber tying into a gear loop is not safe (as the climbing gym employee did), Petzlbecame a party to the lawsuit once an appellate court decided that the warning labels on the harness, which have been used in several other industries, were not adequate to keep the harness manufacture out of court.

What do you think? Leave a comment.

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

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Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

Joseph Anaya, Plaintiff-Appellant, v Town Sports International, Inc., et al., Defendants, Sport Rock International, Inc., et al. Defendants-Respondents. Index 101027/03

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

October 18, 2007, Decided

October 18, 2007, Entered

COUNSEL: Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.

Callan, Koster, Brady & Brennan, LLP, New York (Marc R. Wilner of counsel), for Sport Rock International, Inc., respondent.

Goldberg Segalla LLP, Mineola (Joanna M. Roberto of counsel), for Petzl America, Inc., respondent.

JUDGES: Friedman, J.P., Nardelli, Sweeny, McGuire, Malone, JJ.

OPINION

[**485] [***600] Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2006, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants Sport Rock International (Sport Rock) and Petzl America, Inc. (Petzl) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the motions denied with respect to plaintiff’s claims based on design defect and [***601] failure to warn, and otherwise affirmed, without costs.

Plaintiff sustained severe personal injuries when he fell from a height of approximately 30 feet while descending a rock climbing wall that was operated by defendant Town Sports International, Inc. of West Nyack (TSI). The accident occurred because an employee of TSI tied the safety line plaintiff was using to a non-weight bearing gear loop on the harness plaintiff was wearing; the line should have been tied to the “anchor point” of the harness. As plaintiff descended the wall the gear loop tore away from the harness, causing plaintiff’s fall. The harness was sold to TSI by Sport Rock and manufactured by Petzl.

Plaintiff asserts causes of action for, among other things, negligence and strict products liability. Plaintiff asserts that Sport Rock and Petzl are liable for his injuries because the safety harness was defectively designed and insufficient warnings were provided regarding where on the harness the safety line was supposed to be tied. Sport Rock moved for summary judgment dismissing the complaint and all other claims as asserted against it, and Petzl moved separately for similar relief. Plaintiff cross-moved for a special trial preference and to dismiss the affirmative defenses of Sport Rock and Petzl premised on [**486] the alleged absence of personal jurisdiction over those defendants. Supreme Court granted the motions of Sport Rock and Petzl, and denied plaintiff’s cross motion. Plaintiff appeals, as limited by his brief, from those portions [*2] of the order that granted the motions of Sport Rock and Petzl. 1

1 Plaintiff settled this action with TSI.

Petzl’s argument that plaintiff failed to oppose its motion before Supreme Court and that plaintiff therefore lacks standing to maintain this appeal is without merit. Plaintiff expressly opposed the motions of Sport Rock and Petzl for the reasons stated by TSI in its opposition to the motions.

[HN1] To establish a prima facie case for strict products liability based on defective design, the plaintiff must show that “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107, 450 N.E.2d 204, 463 N.Y.S.2d 398 [1983]). With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (id. at 108). In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design” (id. at 109).

Since the harness was undoubtably meant to bear the weight of a climber, it was reasonably foreseeable that a climber [***602] might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight. In fact, both these defendants admitted that novice climbers had been known to attach safety lines to gear loops and other parts of the harness. Rather than designing the gear loop to be weight bearing, or omitting it from the design, Petzl decided to make it appear flimsy in the expectation that the user would not attempt to attach a line to it. Whether this decision was reasonable in view [**487] of the questionable utility of a gear loop on a harness used for indoor rock climbing and the serious risk posed is a question for the jury (Voss, 59 NY2d at 108-109; see also Denny v Ford Motor Co., 87 NY2d 248, 662 N.E.2d 730, 639 N.Y.S.2d 250 [1995]).

Triable issues of fact also exist regarding plaintiff’s cause of action for strict products liability based on failure to warn. [HN2] “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” (Liriano v Hobart Corp., 92 NY2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 [1998]). This rule applies with equal force to distributors and retailers (see Godoy v Abamaster of Miami, 302 AD2d 57, 754 N.Y.S.2d 301 [2003]). Foreseeing the potential that harness users might tie safety lines to gear loops, Petzl warned against such conduct. This warning appeared in the manual accompanying the harness and in a technical notice. A small label on the harness contained a “skull and cross-bones” symbol and directed the user to refer to the manual and technical notice. There is expert evidence, however, that these warnings were inadequate because no warning on the harness itself specifically advised against tying a safety line to the gear loop. Thus, the sufficiency of the warnings must be determined by a jury.

Contrary to the assertions of Sport Rock and Petzl, we cannot determine as a matter of law that the conduct of TSI’s employee was a superseding act.

[HN3] Where the acts of a third person intervene between the defendant’s conduct and [*3] the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 [1980]).

Here, TSI’s employee testified that she knew the safety line was not to be tied to the gear loop. However, she did not know what purpose the gear loop served, and accidently tied the safety line to it. While it appears that this employee had minimal training on the proper use of the harness and had not read the manual or technical notice, the record does not permit a finding that the employee’s conduct was unforeseeable as a matter of law. The record is replete with evidence indicating the foreseeability of the risk that novice users of the harness (or for that matter other inexperienced persons such as the employee) might mistakenly tie safety lines to gear loops. Had the harness been [**488] designed without a gear loop or with a weight bearing gear loop, or had clearer warnings been on the harness itself, the accident may have been prevented. Accordingly, triable issues of fact exist regarding whether the alleged defective design [***603] of the harness, the alleged inadequate warnings, or both, was a substantial factor in causing plaintiff’s injuries (see id. [“Because [HN4] questions concerning what is foreseeable and what is normal may be the subject of varying inferences … these issues generally are for the fact finder to resolve”]).

Plaintiff’s remaining contentions are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2007

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BSA Summer Camp was able to have punitive damages claim dismissed prior to trial

Plaintiff’s complaint was not sufficient to adequately plead its claim for punitive damages.

N.H., a minor child, v. N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)

Plaintiff: N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually

Defendant: Sequoyah Council, Inc., Boy Scouts of America

Plaintiff Claims: (1) it [defendant] failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners

Defendant Defenses: Unknown

Holding: Motion to dismiss punitive damages claim by defendant granted for defendant

 

This is a pre-trial decision and should not be relied upon for a firm statement about the law in Tennessee as far as dismissing claims prior to trial.

The plaintiff was a boy who went to a Boy Scout Summer Camp in Tennessee. While mountain biking at the camp his brakes allegedly did not work, and he rode off the trail and hit a tree.

The plaintiff sued for a multitude of claims, including an allegation that punitive damages were being requested. The defendant filed this motion prior to trial to eliminate the claim for punitive damages.

Summary of the case

The court looked at Tennessee’s law concerning punitive damages. Under Tennessee’s law, punitive damages are only available for “only the most egregious of wrongs.” “Accordingly, under Tennessee’s law, “a court may … award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.”

Punitive damages are not available for gross negligence. To receive punitive damages under Tennessee’s law:

A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.

In this case, the complaint did not make any allegations that fit within the required definitions. Consequently, the part of the complaint demanding punitive damages was dismissed.

So Now What?

This was a pre-trial motion that was of interest; however, this is not a final decision in the case and could be overturned by another court after the trial on this case.

Tennessee has higher requirements for most other states to ask for and receive punitive damages. Consequently, the defendant was able to dismiss that part of the complaint in advance of trial.

It never hurts to know the specifics of what is required to prove damages above normal damages. That knowledge can help keep you safe.

What do you think? Leave a comment.

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N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)

N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America

NO. 2:11-CV-171

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2012 U.S. Dist. LEXIS 87452

April 30, 2012, Filed

COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.

For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.

JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

OPINION BY: J. RONNIE GREER

OPINION

ORDER

This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.

FACTS

The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.

The defendant was allegedly negligent as follows: (1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).

Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.

LEGAL STANDARD

[HN1] Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

[HN2] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).

ANALYSIS

[HN3] “In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.

[HN4] The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. 1

1 [HN5] The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”

Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].

The Court has reviewed the Complaint and agrees with the defendant. [HN6] “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.

[HN7] Under Tennessee law, “A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) ( [HN8] “To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).

In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.

ENTER:

/s/ J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

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