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Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.

However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.

Quiroz et. al. v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas, Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”)

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish.

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.

However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.

Facts

The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.

The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.

The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.

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

The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.

The court did not agree, finding language in the release that stated the release applied to all “jumpstreet entities that engaged in the trampoline business.”

…it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”

The next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.

Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.

Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.

Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.

The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.

The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.

The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim for gross negligence.

The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence, and gross negligence are not separable claims and a release of liability for negligence also releases a party from liability for gross negligence.

(For other arguments like this see In Nebraska a release can defeat claims for gross negligence for health club injury.)

The court looked at the release which identified negligence and gross negligence as claims that the release would stop.

Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.

…Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

The court affirmed the trial court’s dismissal of the plaintiff’s claims.

So Now What?

First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.

In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.

Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.

Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.

What do you think? Leave a comment.

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Quiroz v. Jumpstreet8, Inc., 2018 Tex. App. LEXIS 5107

Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees

No. 05-17-00948-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2018 Tex. App. LEXIS 5107

July 9, 2018, Opinion Filed

PRIOR HISTORY: [*1] On Appeal from the 298th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 15-02671.

In re Quiroz, 2017 Tex. App. LEXIS 7423 (Tex. App. Dallas, Aug. 7, 2017)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The trampoline facility owner met its burden of establishing it was entitled to summary judgment as a matter of law because the release was enforceable when it met both the fair notice requirement for conspicuousness and the express negligence rule.

OUTCOME: Order affirmed.

CORE TERMS: summary judgment, entity, gross negligence, public policy, negligence claims, partial, matter of law, cause of action, pre-injury, consortium, waive, cross-motion, notice requirements, trampoline, bystander, specifically named, unenforceable, signing, mental anguish, signature line, conspicuousness, distinguishable, enforceable, derivative, lettering, parental, waiving, notice, void, issue of material fact

COUNSEL: For Graciela Quiroz, et al, Appellant: John T. Kirtley, Lead counsel, Ferrer, Poirot and Wansbrough, Dallas, TX.

For Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellee: Cassie Dallas, Shelby G. Hall, Wade C. Crosnoe, Lead Counsel, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX; Michael A. Yanof, Lenahan Law, P.L.L.C., Dallas, TX; Randy Alan Nelson, Thompson Coe, Dallas, TX.

JUDGES: Before Justices Myers, Boatright, and O’Neill.1 Opinion by Justice O’Neill.

1 The Hon. Michael J. O’Neill, Justice, Assigned

OPINION BY: MICHAEL J. O’NEILL

OPINION

MEMORANDUM OPINION

Opinion by Justice O’Neill

Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.

Background

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release [*2] and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted [*3] the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

Issue Presented

In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion [*4] for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.

Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.

Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release [*5] before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.

Applicable Law

[HN1] We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.–Dallas 2009, no pet.); see also Tex. R. Civ. P. 166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. [*6] S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. [HN2] A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.–Dallas 2011, no pet,).

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.

Discussion

[HN3] Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written [*7] expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).

[HN4] A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of [*8] Jumpstreet.”

The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.

Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document [*9] carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).

The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of [*10] risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.

Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.–Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. [*11] Moreover, [HN5] the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799-800 (Tex. App.–Houston [14th Dist.] 1998, no pet.).

Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.–Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.2 Some appellate courts have held that negligence [*12] and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied).

2 We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.

In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).

Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the [*13] claims being waived. See Quintana, 347 S.W.3d at 450.

Conclusion

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.

We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.

/s/ Michael J. O’Neill

MICHAEL J. O’NEILL

JUSTICE, ASSIGNED

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.

Judgment entered this 9th day of July, 2018.


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

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

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

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

Plaintiff: Eden Gonzalez Hass et al

Defendant: Rhodyco Productions

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

Defendant Defenses: Release and Primary Assumption of the Risk

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

Year: 2018

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

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

What do you think? Leave a comment.

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

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

Hass v. RhodyCo Productions

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

August 13, 2018, Opinion Filed

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

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

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

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

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

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

Opinion by: Reardon, J.

Opinion

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

I. FACTUAL AND PROCEDURAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

II. DISCUSSION

A. Standard of Review

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

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

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

B. Express Waiver

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

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

1. Waiver of Wrongful Death Claim

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

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

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

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

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

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

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

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

2. Public Policy

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

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

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

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

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

3. Gross Negligence

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

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

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

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

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

C. Primary Assumption of the Risk

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

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

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

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

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

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

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

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

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

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

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

III. DISPOSITION

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

REARDON, J.

We concur:

STREETER, Acting P. J.

SMITH, J.*


Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Release thrown out because of New York’s anti-release statute and condition causing plaintiff’s injury was the risk was “un-assumed, concealed or unreasonably increased” eliminating assumption of the risk claim.

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

State: New York, Supreme Court of New York, Kings County

Plaintiff: Meghan McDonald

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: negligence,

Defendant Defenses: Release and Assumption of the Risk

Holding: for the Plaintiff

Year: 2016

Summary

Another case where it appears, the court was more on the plaintiff’s side then neutral. However, you must play with the cards you are dealt. Here a person injured at a climbing gym survived a motion for summary judgment because the release violated New York’s release law, and she could not assume the risk of the mats separating because it was not obvious or known to her.

Facts

The plaintiff was an employee of another climbing wall business. She was the coach of the climbing team there. She was at the defendant’s climbing wall business either to coach her team or to climb personally, which were in dispute. While climbing on an overhang she fell and her foot went between the mats causing her injury.

The plaintiff did not pay to climb because the clubs had reciprocal agreements allowing employees to climb at other gyms for free. The mats were Velcroed together. The plaintiff sued. The defendant club filed a motion for summary judgment, and this is the court’s response to that motion.

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

The defendant argued the release should stop the plaintiff’s lawsuit, and she assumed the risk of her injury.

The plaintiff argued New York General Obligations Law (GOL) §5-326 made the release unenforceable.

The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect

New York General Obligations Law (GOL) §5-326 has been held to not apply to teaching, Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). Because the plaintiff was there with students, the defendant argued the statute did not apply.

However, the plaintiff argued she was not teaching, just climbing with friends who were former students.

In support of her position that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work.

The other defense to New York General Obligations Law (GOL) §5-326 is there was no fee paid by the plaintiff to climb at the defendant gym. She was there because of the reciprocal program in place with her employer.

The court agreed she was not teaching and found she had paid a fee to climb at the defendant’s gym. Because the program was part of her employment compensation, she had paid a fee by taking advantage of the opportunity as an employee.

In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of their employment and thus could be considered compensation.

The final defense was assumption of the risk. The plaintiff said she had never been to that area of the gym before, however, she did scan the area before climbing.

Under NY law, the assumption of risk defense is defined as:

The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”

By engaging in the activity or sport the plaintiff gives consent to the risks and limits the duty owed by the defendant. However, the risks of the activity, according to this court must be “fully comprehended or perfectly obvious.” The court then determined “Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks.”

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’

The Velcro connection holding the mats together was an injury for the jury to determine because the court found the condition was a concealed risk.

So Now What?

It is pretty skanky (legal word) for an employee of one gym, climbing for free, to sue another gym. I suspect the lawsuit was probably a subrogation claim where her health insurance was attempting to recover for her medical bills. However, that is just speculation.

New York General Obligations Law (GOL) §5-326 is read differently by ever judge that reviews it. Some simply say it does not apply and allows the release to prevail. Any court that seems to do an analysis of the law seems to rule on the side of the plaintiff lately. The late is left over from the days when consumers did not know what a release was and were caught off guard when they risked their neck in gyms.

However, the chances of it being repealed are slim, too many plaintiffs use the law so having a recreation business in New York requires more work on the part of the recreation provider to prove assumption of the risk.

Video’s, lengthy assumption of the risk agreements outlining the known and unknown risks and more in-depth classes for beginners and new people at the gym will be required in this jurisdiction.

Can you see this climbing coach being told she must take a one-hour class on climbing because she has never been to the gym before?

What do you think? Leave a comment.

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McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

[**1] Meghan Mcdonald, Plaintiff, – against – Brooklyn Boulders, LLC., Defendant. Index No. 503314/12

503314/12

SUPREME COURT OF NEW YORK, KINGS COUNTY

2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

April 12, 2016, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: climbing, mat, climb, team, rock climbing, recreational, leave to amend, affirmative defense, risk doctrine, instructional, bouldering, void, appreciated, concealed, teaching, training, wasn’t, amend, sport’, Rock, gym, matting, reciprocal agreement, public policy, dangerous condition, unreasonably, amusement, watching, unaware, advice

JUDGES: [*1] PRESENT: HON. MARK I. PARTNOW, J.S.C.

OPINION BY: MARK I. PARTNOW

OPINION

Upon the foregoing papers, defendant Brooklyn Boulders, LLC (defendant or Brooklyn Boulders) moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff Meghan McDonald’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

[**2] Background

Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After [*2] approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.

[**3] Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. [*3] She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.

Brooklyn Boulders’ Motion

Brooklyn Boulders moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:

[**4] Q: And were you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question [*4] they would ask me hey, should I do this or do this or what do you think of this move I always give advice. (Page 30, lines 12-17).

Q. Did you ever teach any or give any instruction there?

A. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another. (Page 45, lines 5-12).

Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.

In support of its motion, defendant submits the signed waiver which states, in pertinent part:

I acknowledge [*5] that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential [**5] qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:

a:. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence . . . I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification . . .

Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was [*6] outside the scope of GOL §5-326.

Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.

Finally, defendant argues that it should be allowed to amend its answer to assert the affirmative defense of release. Defendant contends that it was unaware of the existence of the release and waiver when it served its answer. Moreover, defendant contends that plaintiff will not be prejudiced because she was, in fact, questioned about the release that she signed during her deposition.

[**6] Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court. Plaintiff contends that such behavior should be sanctioned. In support of her position [*7] that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work. (Page 62, lines 5-13). She further points to the following testimony:

Q: In September of 2011 when you went there on the date in question what was your purpose of being there?

A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.

Q: And were they climbing around you.

A: Yeah, they were.(page 29, lines 14-25).

Q: And were you supervising them?

A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.

[**7] Q: Were they watching you?

A: A few of them were watching me yeah.

Q: And were [*8] you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice (page 30, lines 2-17).

Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.

Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in [*9] place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.

Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she [**8] contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.

Finally, plaintiff opposes defendant’s request to amend its answer to add the affirmative defense of waiver. Plaintiff argues that the existence of the waiver was known and that it is disingenuous at best to assert otherwise. Plaintiff contends that this request, post note of issue, is highly prejudicial to plaintiff.

In reply, defendant argues that plaintiff’s demand for sanctions lacks merit and that plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a [*10] route setting department that checked its walls and mats and that bouldering climbers were responsible for enuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition. Finally, Brooklyn Boulders reiterates its request for leave to amend its answer to assert the affirmative defense.

[**9] Discussion

Leave to Amend

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, 1 N.Y.S.3d 307 [2015]; see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 821, 7 N.Y.S.3d 352 [2015]; Rodgers v New York City Tr. Auth., 109 AD3d 535, 537, 970 N.Y.S.2d 572 [2013]; Schwartz v Sayah, 83 AD3d 926, 926, 920 N.Y.S.2d 714 [2011]). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119, 913 N.Y.S.2d 339 [2010]). However, where amendment is sought after the pleader has filed a note of issue, “a trial court’s discretion to grant a motion to amend should be exercised with caution” (Harris v Jim’s Proclean Serv., Inc., 34 AD3d 1009,1010, 825 N.Y.S.2d 291 [3d Dept 2006]).

Here, while the court is not satisfied with counsel’s explanation that he was unaware of the [*11] existence of the release and waiver signed by plaintiff at the time that the original answer was served, the court notes that plaintiff was questioned about the release and waiver during her May 6, 2014 deposition so the court finds that there is no surprise of prejudice in allowing defendant leave to serve its amended answer and assert the affirmative defense of release and waiver. Accordingly, that branch of defendant’s motion seeking leave to amend its answer to the complaint to include this affirmative defense is granted.

[**10] General Obligations Law §5-326

GOL §5-326 states that:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall [*12] be deemed to be void as against public policy and wholly unenforceable.

Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F.Supp.2d 92, 99 [1998]; McDuffie v Watkins Glen Int’l, 833 F. Supp. 197, 202 [1993] ). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428 [1994] ), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719 [1985] ), have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have [**11] examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” (Lemoine v Cornell Univ., 2 AD3d 1017, 1019, 769 N.Y.S.2d 313 [2003], lv denied 2 NY3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2004]). In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Id. At 1019; see Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, 32 F Supp 2d at 99). Where [*13] a facility “promotes . . . a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law § 5-326 applies even if the injury occurs while receiving instruction (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170 [2007]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175, 710 N.Y.S.2d 54 [2000]).

Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases invloving the exemption for instrctional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, [**12] where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of [*14] their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.

Assumption of Risk

The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; Paone v County of Suffolk, 251 AD2d 563, 674 N.Y.S.2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 N.Y.S.2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 N.Y.S.2d 578 [2d Dept 1996]). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 N.Y.S.2d 499 [2d Dept 2006]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 N.Y.S.2d 663 [2d Dept 1992]). It is well settled that “awareness of [**13] risk is not to be determined in a vacuum. It is, rather, to [*15] be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989]; Turcotte v Fell, 68 NY2d 432, 440, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]; Latimer v City of New York, 118 AD3d 420, 421, 987 N.Y.S.2d 58 [2014]). When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d at 439). Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior ‘by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’ (Jafri v Equinox Holdings, Inc., 2014 N.Y. Misc. LEXIS 5330, 4-5 [Sup. Ct, New York County quoting Mellon v Crunch & At Crunch Acquisition, LLC, 32 Misc 3d 1214[A], 934 N.Y.S.2d 35, 2011 NY Slip Op 51289[U] [Sup Ct, Kings County 2011]; Livshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460, 466, 761 N.Y.S.2d 825 [Sup Ct, Queens County 2003]).

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ (Morgan, 90 NY2d at 485. quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998 [1992]; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467 [2d Dept 2015]; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 678, 961 N.Y.S.2d 178 [2d Dept 2013]). Participants, however, do not assume risks which have been unreasonably increased or [**14] concealed over and above the usual dangers inherent in the activity (see Morgan, 90 NY2d at 485; Benitez, 73 NY2d at 657-658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113 [2002]).

In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger [*16] of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.

Based upon the foregoing, that branch of Brooklyn Boulders motion seeking summary judgment dismissing plaintiff’s complaint is denied.

The foregoing constitutes the decision and order of the court.

ENTER,

/s/ Mark I Partnow

J. S. C.

HON. MARK I PARTNOW

SUPREME COURT JUSTICE


Release for a health club which had a foam pit included language specific to the injury the plaintiff suffered, which the court used to deny the plaintiff’s claim.

Argument made that the word inherent limited the risks the release covered and as such did not cover the injury the plaintiff received.

Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

State: Illinois, Appellate Court of Illinois, Second District

Plaintiff: Kamil Macias

Defendant: Naperville Gymnastics Club

Plaintiff Claims: negligent in its failure to properly supervise the open gym, train participants, and warn participants of hazards and dangers accompanied with activities and use of equipment in the open gym

Defendant Defenses: Release

Holding: For the Defendant

Year: 2015

Summary

Plaintiff was injured jumping headfirst into a foam pit at the defendant’s gym. The plaintiff had signed a release relieving the defendant of liability, which was upheld by the trial court and the appellate court.

For the first time, the plaintiff argued the release was limited by the language in the release because it used the term inherent in describing the risks. Inherent limits the risks, to those that are part and parcel of the activity and the injury that befell the plaintiff was a freak accident.

Facts

The plaintiff went to the defendant club during open hours when the public could attend with a friend. He paid an admission fee and signed a release. The club had a foam pit. The plaintiff watched other people jump into the pit then tried it himself. He jumped off the springboard and instead of landing feet first he landed head first in the pit.

The plaintiff broke his neck requiring extensive surgery and rehabilitation.

The defendant club filed a motion to dismiss based upon the release signed by the plaintiff. The trial court denied the motion to dismiss because the release was ambiguous.

During discovery, the plaintiff admitted he did not see the rules of the gym but did understand the risks of landing in the pit head first.

Walk around all pits and trampolines,” and he stated that he understood what this meant. The rules also stated: “Do not play on any equipment without proper supervision,” and “Do not do any gymnastics without proper supervision,” and plaintiff stated that he understood what these meant. Plaintiff also stated that he did not see a sign painted on the wall in the gym titled, “Loose foam pit rules.” That sign stated: “Look before you leap,” “No diving or belly flops,” and “Land on feet, bottom or back only.” Plaintiff acknowledged that he understood what these meant

After discovery, the defendant club filed a motion for summary judgment based on the additional information collected during discovery. The trial court granted that motion, and this appeal was dismissed.

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

The appellate court looked at contract law in Illinois.

The primary objective in construing a contract is to give effect to the parties’ intent, and to discover this intent the various contract provisions must be viewed as a whole. Words derive meaning from their context, and contracts must be viewed as a whole by examining each part in light of the other parts. Id. Contract language must not be rejected as meaningless or surplusage; it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly.

A release is a contract. For the release to be valid and enforceable, it should:

…contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. In this way, the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution.

The court found the injury suffered by the plaintiff fell within the scope of the possible injuries of the release and contemplated by the plaintiff upon signing the release.

Two clauses in the release stated the plaintiff was in good physical health and had proper physical condition to participate. The plaintiff argued these clauses made the release ambiguous; however, the appellate court did not find that to be true.

Here is the interesting argument in the case.

I have repeatedly stated that releases that limit releases to the inherent risk are limited in their scope. The plaintiff made that argument here.

Plaintiff argues that the use of “inherent risk” language throughout the release creates an ambiguity as to whether the language covers only dangers inherent in gymnastics and not freak accidents. We also reject this argument. As previously stated, the release specifically lists landing on landing surfaces as an inherent risk. Thus, there is no ambiguity as to whether plaintiff’s injury was covered by the release.

The plaintiff also argued his injury was not foreseeable because:

… (1) he lacked specialized knowledge of gymnastics and, in particular, foam pits, to appreciate the danger and foresee the possibility of injury, and (2) his injury was not the type that would ordinarily accompany jumping into a foam pit.

The argument on whether the injury was foreseeable is not whether the plaintiff knew of the risk but:

The relevant inquiry is not whether [the] plaintiff foresaw [the] defendants’ exact act of negligence,” but “whether [the] plaintiff knew or should have known” the accident “was a risk encompassed by his [or her] release.

The court found the injury the plaintiff received was on that was contemplated by the release.

Thus, the issue here is whether plaintiff knew or should have known that the accident was a risk encompassed by the release which he signed. As previously determined, the language of the release in this case was specific enough to put plaintiff on notice. In discussing inherent risks in the sport of gymnastics and use of the accompanying equipment, the release lists injuries resulting from landing on the landing surfaces, which includes injuries to bones, joints, tendons, or death.

The plaintiff also argued the release violated public policy because the release was presented to “opened its gym to the unskilled and inexperienced public” when it opened its gym to the public.

The court struck down this argument because the freedom to contract was greater than the limitation on damages issues.

The appellate court affirmed the trial court’s granting of the summary judgment for the defendant based on the release.

So Now What?

The inherent risk argument here was made but either not effectively argued by the plaintiff or ignored by the court. However, for the first time, the argument that the word inherent is a limiting word, not a word that expands the release was made in an argument.

What do you think? Leave a comment.

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