Appellate court slams climbing gym, all climbing gyms in New York with decision saying not climbing gym can use a release.

A climbing gym is a recreational facility. As such, under New York law, the court found all releases fail at climbing gyms. Short, simple and broad statement leaves little room to defend using a release in New York.

Citation: Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660

State: New York; Supreme Court of New York, Appellate Division, Second Department

Plaintiff: Jennifer Lee, et al.

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release and Assumption of the Risk

Holding: For the Plaintiff

Year: 2017

Summary

A climber fell between the mats at a climbing gym injuring her ankle. The release was thrown out because a climbing gym is a recreational facility and assumption of the risk did not prevail because the Velcro holding the mats together hid the risk.

Facts

The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats. According to the injured plaintiff, the gap was covered by a piece of Velcro.

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

The trial court dismissed the defendant’s motion for summary judgment, and the defendant appealed. There were two issues the defendant argued on appeal: Release and Assumption of the Risk.

The court threw out the release in a way that makes using a release in New York at a climbing gym difficult if not impossible.

Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature. Therefore, the release does not bar the plaintiffs’ claims.

The court threw out the release with a very far-reaching statement. “the defendant’s facility is recreational in nature.” It is unknown if the defendant tried to argue educational issues such as in Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

The court then looked at the defense of assumption of the risk.

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Moreover, “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

This court would seem to agree with an assumption of the risk defense based on statements made in case law set out above.

However, the facts in this case do not lead to such a clear decision. Because the gap between the mats was covered by Velcro, the court thought the Velcro concealed the risk.

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing.

The Velcro, which was designed to keep the mats from separating, concealed the gap, which injured the plaintiff’s foot, when she landed between the mats. The defense of assumption of the risk was not clear enough for the court to decided the issue. Therefore assumption of the risk must be decided by a jury.

Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers

So Now What?

It is getting tough to defend against claims and injuries in New York, specifically in climbing gyms. For an almost identical case factually see: Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Obviously, the facts in the prior New York climbing gym case, where the plaintiff fell between the mats provided the “track” used by this plaintiff in this lawsuit.

If your climbing gym has mats held together with Velcro or some other material, paint the material yellow or orange and identify that risk in your release or assumption of the risk agreement.

Assumption of the risk may still be a valid defense see NY determines that falling off a wall is a risk that is inherent in the sport. Unless you are teaching a class or some other way to differentiate your gym or that activity from a recreational activity, you are going to have to beef up your assumption of the risk paperwork and information to stay out of court.

What do you think? Leave a comment.

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leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia

risks, sport, injured plaintiff, punitive damages, leave to amend, cross motion, cross-appeal, consented, climbing, gap, personal injury damages, action to recover, summary judgment, inherent risk, prima facie, inter alia, recreational, appreciated, plaintiffs’, engaging, appeals, mats, rock


Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660

Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660

Jennifer Lee, et al., respondents-appellants, v Brooklyn Boulders, LLC, appellant-respondent. (Index No. 503080/13)

2016-04353

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660

December 13, 2017, Decided

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

CORE TERMS: leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia

COUNSEL: [***1] Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Nicholas P. Hurzeler of counsel), for appellant-respondent.

Carman, Callahan & Ingham, LLP, Farmingdale, NY (James M. Carman and Anne P. O’Brien of counsel), for respondents-appellants.

JUDGES: WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ. MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.

OPINION

[**68] [*689] DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated April 20, 2016, as denied its motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to add a demand for punitive damages.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap [***2] between two mats. According to the injured plaintiff, the gap was covered by a piece of velcro.

[**69] [*690] The plaintiffs commenced this action to recover damages for personal injuries, etc. The defendant moved for summary judgment dismissing the complaint, and the plaintiffs, inter alia, cross-moved for leave to amend the complaint to add a demand for punitive damages. The Supreme Court, inter alia, denied the motion and the cross motion. The defendant appeals and the plaintiffs cross-appeal.

Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature (see Serin v Soulcycle Holdings, LLC, 145 AD3d 468, 469, 41 N.Y.S.3d 714; Vanderbrook v Emerald Springs Ranch, 109 AD3d 1113, 1115, 971 N.Y.S.2d 754; Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170; Miranda v Hampton Auto Raceway, 130 AD2d 558, 558, 515 N.Y.S.2d 291). Therefore, the release does not bar the plaintiffs’ claims.

“Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Koubek v Denis, 21 AD3d 453, 799 N.Y.S.2d 746). “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, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49; see Morgan v State of New York, 90 NY2d at 484; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526). Moreover, “by engaging in a sport or recreational [***3] 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 at 484; see Simone v Doscas, 142 AD3d 494, 494, 35 N.Y.S.3d 720).

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing (see Siegel v City of New York, 90 N.Y.2d 471, 488, 685 N.E.2d 202, 662 N.Y.S.2d 421; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467; Dann v Family Sports Complex, Inc., 123 AD3d 1177, 1178, 997 N.Y.S.2d 836; Segal v St. John’s Univ., 69 AD3d 702, 704, 893 N.Y.S.2d 221; Demelio v Playmakers, Inc., 63 AD3d 777, 778, 880 N.Y.S.2d 710). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, [*691] regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).

The Supreme Court providently exercised its discretion in denying the plaintiffs’ cross motion for leave to amend the complaint to add a demand for punitive damages (see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 7 N.Y.S.3d 352; Hylan Elec. Contr., Inc. v MasTec N. Am., Inc., 74 AD3d 1148, 903 N.Y.S.2d 528; Kinzer v Bederman, 59 AD3d 496, 873 N.Y.S.2d 692).

[**70] MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.


Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.

Defendants are the company that booked the trip (Vail through Grand Teton Lodge Company) and the travel agent who booked the trip.

Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

State: Wyoming

Plaintiff: Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Per-sonal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs

Defendant: Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc.

Plaintiff Claims: Negligence, Punitive damages

Defendant Defenses: Wyoming’s Recreation Safety Act

Holding: Mixed, mostly for the plaintiff

Year: 2009

Summary

Decision looks at the liability of the travel agency and the hotel that booked a rafting float trip where three people died. The only defenses of available were the Wyoming’s Recreation Safety Act which helped keep the lawsuit in Wyoming applying Wyoming law, but was ineffective in assisting in the defense of the lawsuit.

The rafting company is not part of this decision so probably the raft company settled with the defendants before the case was filed or this motion was heard.

Facts

Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. GTLC is organized under the laws of Wyoming and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.”

On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. They traveled via several vans to the rafting launch site at Deadman’s Bar. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria Urrutia. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years.

During the float trip, Raft No. 2 struck a log jam. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result.

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

The first issue was a choice of laws (jurisdiction and venue) provision in the agreement with the travel agency Tauck, which stated venue was to be in Connecticut. The plaintiff was arguing that the case should be moved to Connecticut, which is odd, because the plaintiff’s filed the case to start in Wyoming. However, since they sued in Wyoming, the plaintiff is still arguing that Connecticut law should apply.

Tauck argued the choice of law provisions was for its benefit, and it had the right to waive that provision in the agreement. The court found that Tauck had the right to waive a provision in the agreement that was there for its benefit.

In Wyoming, a contract must be construed according to the law of the place where it was made. There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.”

The court held that the provision was for Tauck’s benefit because the living plaintiffs were residents of Georgia and Louisiana.

The court also stated, even it had not found for Tauck on this issue this way; it would have still used Wyoming law because of Wyoming’s strong public policy of recreational immunity.

Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of. The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.

Choice of law provisions are usually upheld by the courts; however, there are ways to get around them as this court explained.

The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.

The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation providers in Wyoming:

Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.

The court then reviewed the Wyoming’s Recreation Safety Act. The plaintiff’s argued the Wyoming’s Recreation Safety Act did not apply for three reasons.

First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants.

Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act.

Third, they assert that federal law preempts the Act.

The court found the first argument was already resolved in its analysis of jurisdiction above.

The second argument was the Wyoming’s Recreation Safety Act did not apply to the defendant Tauck, because it was a travel agent in Connecticut and not a “provider” as defined under the act. The court found that Tauck was a provider under the act because as part of its package. Provider is defined as “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.”

The final issue was the argument that the state law was pre-empted by federal law. The argument was based on the concessionaire agreement the defendant had with the NPS. Although the concession agreement with the NPS provided for visitor safety, there was nothing in the agreement showing intent to pre-empt the Wyoming’s Recreation Safety Act.

The court then looked to see if the Wyoming’s Recreation Safety Act provided a defense in this case. The court first defined Inherent Risk under Wyoming law.

‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”

[As you can see, the definition of inherent risk is not a broad definition it narrowly defines the risks to those intrinsic or integral to the activity. That leaves out thousands of risks created by man such as steering the raft, water releases, choosing the run, etc. which are probably not protected by the act.]

Outside of the inherent risks, to thwart the act, the plaintiff only needs to argue the risk was not inherent and the case would proceed to trial because the Wyoming’s Recreation Safety Act does not provide a defense to any risk not inherent in the sport. Because the court could not determine what risks were inherent what were not, it held the Wyoming’s Recreation Safety Act did not apply in this case.

In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park, and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. Complex braiding obscures the main channel, and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.

The court moved on to Tauck’s motion for summary judgment because as a tour agency is was not liable for the negligent acts of third parties, it dealt with. The law supports that argument. “As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control.”

However, that general rules does not apply if a contract with the travel agency or marketing state the travel agency will undertake a duty. (Always remember Marketing makes Promises Risk Management has to Pay for.)

Here the court found the promotional materials were marketing and did not rise to the level to be promises to be kept.

The plaintiff also argued Tauck took on a greater duty to the guests when it undertook the duty to have the guests sign the defendant GTLC’s acknowledgment of risk forms. That duty included duty to inform the guests of the risk associated with river rafting. However, the court could find nothing in Tauck’s action indicating it was accepting a greater duty when it handed out the assumption of the risk forms.

The plaintiff’s created a fraud argument. Under Montana’s law:

To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation

The plaintiff’s argued that the defendants made all sorts of statements and advertising that the float trip was a leisurely scenic trip. The channel the raft guide took was not leisurely but was a dangerous channel by some authorities. However, the issue was, did the defendants intentionally made the statements about the river to induce the plaintiffs to the trip.

The defendants wanted the plaintiff’s claim for punitive damages dismissed. In Wyoming, punitive damages appear to be a claim much like negligence. The punitive damages claim was based on the same allegations that the fraud claim was made, that the defendants misrepresented the nature of the float trip.

Punitive damages in Wyoming are:

We have approved punitive damages in circumstances involving outrageous conduct, such as intention-al torts, torts involving malice and torts involving willful and wanton misconduct.” Willful and wanton misconduct is the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.”

Failing to advise the plaintiffs that the river was running higher than normal because of the spring run off did not rise to a level to be reckless and willful misconduct. The one channel of several the one guide went down was a negligent decision, not a willful one.

So Now What?

Fairly simple, use a release. It would have stopped this lawsuit sooner. If the outfitter would have used a release, it could have protected the lodge and the travel agent. I’m sure the lodge is going to use one now, which will probably just muddy the water because of multiple releases and defendants.

There are very few statutes that provide any real protection in the outdoor recreation industry. Most, in fact, make it easier for the plaintiffs to win. The exception to the rule is a few of the Ski Area Safety Statutes.

Be prepared and do more than rely on a week statute.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Personal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs, vs. Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc., Defendants.

Case No. 08-CV-139-J

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

2009 U.S. Dist. LEXIS 139788

October 1, 2009, Filed

COUNSEL: [*1] For Alexis R Rizas, individually and as the personal representative of the wrongful death beneficiaries, on behalf of John J Rizas, John Friel, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Elizabeth A Rizas, Ronald J Miciotto, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Linda Lewis Clark, James Clark, individually, Lawrence Wilson, individually, Joyce Wilson, individually, Plaintiffs: Mel C Orchard, III, Roy A Jacobson, Jr, LEAD ATTORNEY, SPENCE LAW FIRM Jackson, WY USA.

For Grand Teton Lodge Company, a Wyoming corporation, Defendant: Joe M Teig, LEAD ATTORNEY, Susan Combs, HOLLAND & HART, Jackson, WY USA; Maryjo C Falcone, Peter W Rietz, LEAD ATTORNEY, RIETZ LAW FIRM, Dillon, CO USA.

For Tauck Inc, a New Jersey corporation doing business in the state of Connecticut, also known as Tauck Tours Inc, also known as Tauck World Discovery Inc, Defendant: William M McKellar, LEAD ATTORNEY, McKELLAR TIEDEKEN & SCOGGIN, Cheyenne, WY USA.

JUDGES: ALAN B. JOHNSON, UNITED STATES DISTRICT JUDGE.

OPINION BY: ALAN B. JOHNSON

OPINION

ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendants’ [*2] motions for summary judgment. Tauck, Inc. filed five motions and Grand Teton Lodge Company (“GTLC”) filed one, all on July 22, 2009. After careful consideration of the arguments and evidence supplied by both Plaintiffs and Defendants, for the reasons discussed in detail below, the Court finds that a genuine issue of material fact exists regarding the inherent risk of the river float activity. In all other respects, the Court will grant the defendants’ motions for summary judgment.

FACTS

The Court relates the following facts in the light most favorable to Plaintiffs, who are opposing Defendants’ motions for summary judgment.

Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108, ¶ 9. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” Id. ¶ 24. This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. Id. ¶¶ 23, 24. GTLC is organized under the laws of Wyoming [*3] and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Id. ¶¶ 7, 8. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Id. ¶¶ 23, 24. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.” Plaintiff’s Resp. to Motion for Summary Judgment on Plaintiffs’ Claim for Fraud, Ex. 5.

On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. Stipulated Facts ¶ 27. They traveled via several vans to the rafting launch site at Deadman’s Bar. Id. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Id. ¶ 28. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria [*4] Urrutia. Id. ¶ 29. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years. Id. ¶ 30.

During the float trip, Raft No. 2 struck a log jam. Id. ¶ 32. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result. Further facts will be discussed as necessary to resolve each legal issue.

DISCUSSION

This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the plaintiffs and defendants. Vail Resorts was dismissed from this case for lack of jurisdiction on June 16, 2009. Plaintiffs are citizens of Maryland, Arizona, Louisiana, and Georgia. GTLC is incorporated in Wyoming, which is also its principal place of business. Tauk is incorporated in New Jersey, and its principal place of business is Connecticut.

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” [*5] Fed. R. Civ. P. 56(c); e.g., Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1144 (10th Cir. 2009). The Court must view all facts and make inferences from the evidence in the light most favorable to the non-moving party. E.g., Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236, 1242 (10th Cir. 2009). The Court may consider only admissible evidence. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). See also Fed. R. Civ. P. 56(e)(1).

Choice of Law

Because the Court is sitting in diversity, it would normally apply Wyoming law. See Butt v. Bank of America, N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). In this case, however, Plaintiffs have raised a choice-of-law issue by urging this Court to apply Connecticut law. A federal court sitting in diversity applies the choice-of-law principles of the state in which it sits. Morrison Knudson Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n.12 (10th Cir. 2008). Accordingly, this Court will apply Wyoming choice-of-law principles.

Plaintiffs first contend that Connecticut law applies because Tauck and its clients signed a contract to that effect. Specifically, the contract states the following:

It is agreed by Tauck World Discovery and the Tour Member that all legal claims, actions and proceedings against Tauck World Discovery under, in connection with, resulting from or incident to a tour may be instituted, if at all, only in a state or federal court within the State of Connecticut, USA, to the exclusion of the courts of or in any other state or jurisdiction. It is further agreed that all such claims, actions and proceedings shall [*6] be governed by and decided in accordance with the laws of the State of Connecticut.

Plaintiffs’ Resp. to Motion for Summary Judgment on Plaintiffs’ Claims for Fraud, Ex. 2. Tauck counters by claiming that the choice-of-law provision was intended for its benefit, and therefore it can waive that provision. Furthermore, it points out that, if the contract is to be enforced, there are a number of other provisions that would benefit Tauck, such as the choice-of-forum provision in the excerpt above.

In Wyoming, a contract must be construed according to the law of the place where it was made. J.W. Denio Milling Co. v. Malin, 25 Wyo. 143, 165 P. 1113, 1116 (Wyo. 1917). There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.” E.g., Lanna v. Greene, 399 A.2d 837, 841 (Conn. 1978). See Takahashi v. Pepper Tank & Contracting Co., 58 Wyo. 330, 131 P.2d 339, 354 (Wyo. 1942). The question in this case is whether the choice-of-law provision was included for Tauck’s benefit.

The Court finds that it was. As far as the evidence indicates, none of the tour members or their survivors who are involved in this action are residents of Connecticut. [*7] The three plaintiffs who were also tour members, Mr. Clark and the Wilsons, are residents of Louisiana and Georgia, respectively. The residence of the three deceased tour members is not clear from the evidence submitted to the Court. Even if one of the three decedents were residents of Connecticut, that does not necessarily mean that the provision existed for that person’s benefit. Tauck drafted the provision at issue. The provision benefits Tauck by ensuring that any claims will be litigated in the forum most convenient to it, and under the law with which it is most familiar. Meanwhile, there is little or no benefit to any tour member who is not a resident of Connecticut. Even then, the choice-of-law provision would benefit the tour member by happenstance rather than by intention. Accordingly, Tauck may waive the choice of law provision, and has affirmatively stated that it has done so. Its waiver is further supported by the fact that it has never contended that suit is improper in this Court as a result of the choice-of-forum provision in the same contract.

Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due [*8] to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of Wyoming’s Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 through -123 (LexisNexis 2009). The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Wyo. Stat. Ann. § 1-1-122(a)(iii). Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.

It is this very policy of protecting these providers that renders the contractual choice-of-law provision invalid. The Wyoming Supreme Court has not answered the question of whether the Act represents so strong a Wyoming policy as to render invalid a contractual choice-of-law provision that would eliminate the Act’s application. This Court believes that Wyoming, like other states, would look to general contract principles to resolve this question. The Restatement (Second) of Conflict of Laws § 187 (1971) states:

(1) The law of the state chosen by the parties to govern [*9] their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.

(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either

(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or

(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.

The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract [*10] because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.

The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Wyo. Stat. Ann. § 1-1-122(a)(i) (LexisNexis 1989). In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” 1996 Wyo. Sess. Laws ch. 78, § 1. Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation [*11] providers in Wyoming:

The Court recognizes that its reading of the Wyoming Recreational Safety Act provides enormous protection to those in the business of providing recreational activities. . . . Consumers in Wyoming are now faced with an entire industry whose economic and consequent legislative power enables them to conduct business with only a passing thought to the safety of those who utilize their services. Despite this frightening prospect, the Court recognizes its place in our nation’s federal system of government. A court should not decimate the purpose of a legislative act, no matter how distasteful, when that purpose is clearly incorporated in the language of the act.

Cooperman v. David, 23 F. Supp. 2d 1315, 1321 (D. Wyo. 1998). Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.

The Court’s decision is consistent with precedent set by the Court of Appeals for the Tenth Circuit. In Electrical Distributers, Inc. v. SFR, Inc., one issue considered by the court was whether the trial court properly applied Colorado law where a covenant not to compete named Colorado as the applicable law, [*12] but was to be performed exclusively in Utah. 166 F.3d 1074, 1083-84 (10th Cir. 1999). Using the analysis that this Court has adopted above, the Court of Appeals determined that Utah’s strong interest in careful scrutiny of covenants not to compete controlled over any interest Colorado had in enforcement of a contract made within its boundaries, but to be performed outside them. Id.

Recreation Safety Act

Defendants rely on Wyoming’s Recreation Safety Act and claim that, pursuant to the Act, they owed no duty of care to any of the tour members. In response, Plaintiffs provide three reasons that the Act does not apply. First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants. Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act. Third, they assert that federal law preempts the Act. The Court will now address Plaintiffs second and third arguments in turn.

Wyo. Stat. Ann. § 1-1-122(a)(ii) defines “provider” as follows: “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.” Plaintiffs claim that Tauck is not a provider because of its position that it did not conduct the activity itself, but rather was a travel agent [*13] that procured the raft trip on behalf of its tour members. In doing so, however, Plaintiffs overlook the undisputed fact that Tauck offered the float trip as part of its tour package. Given that the Act includes offering a recreational opportunity in its definition of “provider,” it is obvious that Tauck is, in fact, a provider.

Plaintiffs’ preemption argument requires significantly more discussion. State law may be preempted by federal law in three ways. First, Congress may expressly preempt state law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). Second, Congress may preempt an entire field by regulating that field so comprehensively that there is no room for state regulation. Id. at 31. Third, federal and state law may be in irreconcilable conflict, preempting state law even though Congress has not explicitly stated its intent to do so. Id. None of these three types of preemption occurred in this case.

The specific federal “law” that Plaintiffs believe preempt the Act is the concession contract between GTLC and the National Park Service. In particular, Plaintiffs point to the following language in the concession contract:

The Concessioner is responsible for providing a safe and healthful environment for its employees and clients as outlined [*14] in the Contract. The Concessioner will develop a Risk Management Program that will be approved by the Service in accordance with the Occupational Safety and Health Act (OSHA) and Service Guidelines. The Risk Management Program will be reviewed annually by the Service.

Plaintiffs’ Resp. to Motion For Summary Judgment on Wyoming Recreation Safety Act, Ex. 3. Plaintiffs claim that the concession contract “change[s] the character of the state law provisions encompassed by” the Act, and therefore results in an actual conflict between state and federal law. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, at 12. Plaintiffs also point to the National Park Service Management Policies 2006, which provides for visitor safety emergency response and emergency preparedness. That document refers several times to the safety of visitors to the park. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, Ex. 4.

Plaintiffs make an argument similar to that raised by the plaintiff in Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001). In Carden, this Court summarized the plaintiffs’ arguments as follows:

1) Plaintiff’s injuries occurred on federal land, the Bridger-Teton National Forest; 2) Defendants, in order to operate [*15] their business in the Bridger-Teton National Forest had to obtain a special-use permit from the Forest Service; 3) because Plaintiff’s injuries occurred on federal land, federal law, namely Forest Service regulations and the Defendants’ special-use permit apply; 4) the special-use permit contains provisions concerning negligence and injury to patrons of Forest Service permit holders, which Plaintiff claims requires the permit holders to inform their guests of the risks and have them sign a risk acknowledgment form; and 5) provisions in the Forest Service regulations requiring patrons of the Forest Service concessionaires to assume “usual” risks of activities within the National Forest conflicts with, and thus preempts, the Wyoming Recreation Statute.

Carden, 175 F. Supp. 2d at 1322. The Court determined that, although Congress had the authority to pre-empt the Recreation Safety Act on federal lands, it did not do so. Id. at 1322-26.

In the current case, the Court will follow Carden‘s sound reasoning. The Management Policies and the concession contract cited by Plaintiffs do broadly emphasize the Park Service’s interest in public safety, but does not indicate any intent to preempt Wyoming tort law. “Courts do not ‘lightly attribute [*16] to Congress or to a federal agency the intent to preempt state or local laws.'” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1204 (10th Cir. 2009) quoting Nat’l Solid Wastes Mgmt. Ass’n v. Killian, 918 F.2d 671, 676 (7th Cir. 1990).

Plaintiffs in the case at bar attempt to distinguish Carden by noting that the requirements in Carden were imposed by the Forest Service, while this case involves the Park Service. Plaintiffs do not point out how this fact is relevant, and the Court does not discern any. The Park Service was created to

promote and regulate the use of the Federal areas known as national parks . . . to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1. Its mission is therefore one of conservation, and the Court does not perceive any intent to impact state tort law. The Court finds that federal law has not preempted the Wyoming Recreational Safety Act.

It is now incumbent upon the Court to determine if the Act applies to the circumstances of this case and insulates the defendants from liability. The Act states, in relevant part,

(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport [*17] or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.

Wyo. Stat. Ann. § 1-1-123.

Past disputes regarding the Act’s application involve, as does this case, questions about what constitutes an “inherent risk.” “‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Id. § 1-1-122(a)(i). The Wyoming Supreme Court has had few occasions to address the determination of what is an inherent risk of a particular activity. One of the more recent cases arose as a certified question from this Court. Jackson Hole Mount. Resort Corp. v. Rohrman, 2006 WY 156, 150 P.3d 167 (Wyo. 2006). The [*18] question certified was: “When faced with motions for summary judgment in which there are no genuine issues of material fact, how should a court differentiate, as a matter of law, between ‘inherent risks’ . . . and non-inherent risks . . . ?” Id. at 168.

[The] general answer is that if such a motion is filed, the trial court must scrutinized the facts brought forward by the parties with great care. If the court can say that, given the evidence, this is an “inherent risk” and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it. On the other hand, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder).

Id. This formulation, of course, depends on properly characterizing the activity and risk. For example, in the current case, the activity may be characterized as a “scenic float trip”–as Plaintiffs do throughout their memorandum in opposition to summary judgment–or as “river rafting.” The particular [*19] risk may be described generically as falling out of the boat or, more specifically, as colliding with a log jam resulting in ejection from the raft.

Governing precedent demands that the activity and risk be described as particularly as possible. In Cooperman v. David, for example, the Court of Appeals for the Tenth Circuit stated that, “[w]hen attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [injured person] was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record.” 214 F.3d 1162, 1167 (10th Cir. 2000). In this case, the activity is best described as river floating under the water conditions that were apparent when the tour members embarked. The risk is best described as the risk that the raft would encounter a log jam, ejecting one or more tour members into the river.

Applying the law from this point forward is somewhat more problematic because the precedent in this area is not entirely clear. In Cooperman, the court affirmed this Court’s grant of summary judgment in favor of the defendant because a loose saddle cinch was an inherent risk of the activity of horseback [*20] riding. Id. at 1169. The trial court received expert testimony that a slipping saddle was a risk inherent to horseback riding. Id. at 1168. There was also testimony that the particular saddle at issue was cinched too loosely, and an inference that the loose cinching caused the saddle to slip. Id. The Cooperman court said that, even with this evidence, the risk was inherent because a person cinching a saddle had to balance between doing so too tightly and too loosely. “This imprecision in the cinching of the saddle is ‘characteristic’ or ‘typical’ of and therefore ‘inherent in’ the sport of horseback riding.” Id. Critically, the court stated,

As part of the Coopermans’ burden of showing that [the provider] owed Dr. Cooperman a duty of care, the Coopermans must provide some evidence to explain why the saddle fell, which explanation is not inherent to the sport. . . . Thus, stating only that the cinch was not tight enough does not show that the risk was no longer inherent to the sport. The Coopermans have the burden of presenting some evidence on summary judgment that would raise a question of fact that the loosely cinched saddle was caused, not by an inherent risk, but rather by a risk that was atypical, uncharacteristic, [*21] not intrinsic to, and thus not inherent in, the recreational activity of horseback riding. The Coopermans have not met this burden.

Id. at 1168-69.

The current case presents certain parallels. It is undisputed based on the evidence before the Court that being ejected or otherwise falling out of a raft is generally an inherent risk of river floating. For example, Sheri Griffith, an outfitter and river guide, testified that it is an inherent risk that a person might “become a swimmer” during a float trip. Griffith Depo. 152. There is no testimony that contradicts her opinion. It is also undisputed that the rafting guide instructed the tour members that, if they were to end up in the river, the proper procedure was to float on their back until they could be recovered. L. Wilson Depo. 318; Hobbs Depo. 136. This is similar to the expert testimony in Cooperman that a slipping saddle is an inherent risk of horseback riding: it describes the risk in general terms without looking at the specific cause. Also like Cooperman, Plaintiffs in this case have not submitted admissible evidence that describes a specific cause of the injury, and shown that the particular cause falls outside of the realm of being an inherent [*22] risk. Following the Cooperman analysis, then, the Court would conclude that Plaintiffs have failed to demonstrate that a genuine issue of material fact exists regarding whether encountering a log jam resulting in ejection from the raft is an inherent risk of river floating.

But the Court must also consider Sapone v. Grand Targhee, Inc., 308 F.3d 1096 (10th Cir. 2002). In that case, a six-year-old girl was injured when her horse bolted. Sapone, 308 F.3d at 1098. The plaintiffs presented evidence from an expert that “(1) the instructions were inadequate, (2) the horse was too large, (3) headgear should have been provided, (4) the trail ride may have been too dangerous, and (5) her parents were not notified of the accident.” Id. at 1104. It is not entirely clear why these facts would affect the nature of the risk. The court concluded “that a reasonable jury might conclude that [the girl’s] injuries were the result of negligence that is not characteristic of, intrinsic to, or an integral part [of] horseback riding.” Id. at 1105. Two possible interpretations of this passage are that negligence is never an integral part of horseback riding, or that some negligence is an integral part, but not the negligent acts complained of in that case. The former interpretation would render the statute futile [*23] as a way to safeguard recreation providers against liability, so it is unlikely that the Court of Appeals intended that meaning. The latter interpretation is more plausible, but raises the difficult question of what types of negligence are inherent to a particular activity and which are not. In either case, a trial court or fact finder is confronted with the difficult task of determining whether negligence occurred in order to determine whether the defendant owed a duty.

In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Rutter Depo. Ex. 1. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. [*24] Complex braiding obscures the main channel and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.

Negligence

Tauck moved for summary judgment in its favor on Plaintiffs’ negligence claim. Tauck’s argument boils down to an assertion that it is essentially a travel agency, and therefore is not liable for any negligence committed by GTLC. Plaintiffs contend that Tauck is a common carrier, and therefore subject to a heightened duty of care. They also assert that Tauck assumed a duty to warn of dangerous conditions when it distributed a form entitled “Acknowledgment of Risk” on the way to the river.

As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control. E.g., Sova v. Apple Vacations, 984 F. Supp. 1136, 1140 (S.D. Ohio 1997).1 The general rule may not apply, however, in the face of contractual language to the [*25] contrary. In this case, Plaintiffs contend that Tauck’s promotional materials contained promises that Tauck would assume a certain duty. For example, they point to language in which Tauck states tour members will “enjoy VIP attention from our experienced Tauck Directors who are dedicated to making your trip the best it can be” and that “[o]nce you arrive at your Tauck Bridges destination, leave the day-to-day details to us–all you need to do is have fun with your family.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5-6. They compare this language to that relied upon by the court in Stevenson v. Four Winds Travel, Inc. to find that the plaintiff had a right to expect a warning of a slippery condition while on a tour. 462 F.2d 899, 906-07 (5th Cir. 1972).

1 The Wyoming Supreme Court has not yet addressed this question, but it would likely follow this general rule.

Stevenson, however, is distinguishable from the current case. First, the language in the promotional materials in Stevenson is considerably stronger than those distributed by Tauck. For example, the materials stated that guests would be “cared for by a carefully selected Four Winds Tour escort” and that the tour directors “know precisely what you will be seeing and doing every day.” Id. In contrast, Tauck’s materials state that trips “are enhanced by [*26] our experienced directors,” and that Tauck will “take care of all [arrangements] for you, so you can indulge in the joys of travel without any of the day-to-day hassles.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5. To the extent that these vague statements mean anything at all, it falls far short of a promise to assume a duty. In addition, there is no indication in Stevenson that there was a separate contract. In this case, however, Tauck’s “Conditions of Tour”–relied upon by Plaintiffs in its argument that Connecticut law is applicable–contains a provision in which Tauck disclaims liability for “any Damages, or any problems concerning any . . . supplier providing tour services [or] programs, . . . including but not limited to . . . negligence by any . . . other supplier providing tour services [or] programs.” Plaintiffs’ Resp. to Motion for Summary Judgment on Recreation Safety Act, Ex. 1. Courts have relied on similar disclaimers to bar liability for acts of third parties that are beyond the control of the tour operator because the disclaimers are evidence that the operator did not intend to assume a guarantee of safety, even if the disclaimer is not itself [*27] contractually binding. E.g., Sova, 984 F. Supp. at 1139-40 (collecting illustrative cases). Accordingly, this Court finds that, as a matter of law, Tauck had no duty, either by virtue of its position as a tour operator or assumed through its promotional materials.

Plaintiffs next contend that Tauck is a common carrier pursuant to the common law and Article 10, Section 7 of the Wyoming Constitution. That provision states: “All corporations engaged in the transportation of persons, property, mineral oils, and minerals products, news or intelligence, including railroads, telegraphs, express companies, pipe lines and telephones, are declared to be common carriers.” Plaintiffs then rely upon section 314A of the Restatement (Second) of Torts, which states that a common carrier has a duty to its passengers to take reasonable action “to protect them against unreasonable risk of physical harm,” and to render aid if they are harmed. Tauck contends that it is not a common carrier because it does not actually transport tour members during the river floating trip.

Tauck’s position has merit, and there is authority for the proposition that a tour operator is not a common carrier. E.g., Stafford v. Intrav, Inc., 841 F. Supp. 284, 287 (E.D. Mo. 1993). The Court need not resolve the question of whether Tauck is a common carrier, however, because even if it is in general, it was not transporting [*28] tour members at the time of the raft collision. The undisputed evidence is that the tour members, during the rafting trip, were being transported by GTLC, not Tauck. In short, the tour members were no longer subject to Tauck’s custody or control, and therefore Tauck owed no duty. See Id. (tour operator had no duty to warn of dangerous condition on premises not under its control).

This leaves the question of whether distribution of “Acknowledgment of Risk” forms resulted in an imposition of a duty on Tauck. Plaintiffs cite section 324A of the Restatement (Second) of Torts, which states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The Wyoming Supreme Court adopted this provision as reflected in subsection (a) in Ellsworth Bros., Inc. v. Crook, 406 P.2d 520, 524 (Wyo. 1965). Relying [*29] on the Restatement, Plaintiffs claim that “by requiring its Tour Directors to get guests to sign GTLC’s Acknowledgment of Risk form well in advance of arriving at the Lodge, Tauck undertook the duty to inform guests about risks associated with the raft trip.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 7.

This statement, however, assumes that by undertaking to distribute the “Acknowledgment of Risk” form, Tauck was undertaking the broader task of informing guests about risks associated with the raft trip. There is no evidence before the Court to support this assumption. The only evidence that Tauck undertook to do anything for GTLC is testimony that GTLC asked Tauck to present the form to those tour members who were to participate in the rafting trip. Rice Depo. 47.2 There is no testimony that suggests Tauck was asked, or agreed, to inform guests of all risks involved in the rafting trip.

2 There is some conflict in the record regarding precisely when the tour members were given the form, but that is not material for resolution of this issue.

The Court finds as a matter of law that Tauck did not owe a duty to the tour members to warn them of the conditions of the river or otherwise act to prevent their injuries. Tauck may not be found negligent on a theory of direct liability.

Joint Venture

The Court must next address Tauck’s [*30] contention that it may not be held vicariously liable for GTLC’s negligence because the two companies did not form a joint venture. Tauck argues that GTLC was simply a supplier, and that the two businesses did not jointly embark on a business venture. In Wyoming, a person alleging the existence of a joint venture has the burden to prove four elements:

(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Popejoy v. Steinle, 820 P.2d 545, 549 (Wyo. 1991) quoting Holliday v. Bannister, 741 P.2d 89, 93 n.1 (Wyo. 1987).

Considering the first element, that of an agreement, the Court finds that there is a genuine issue of material fact regarding whether Tauck and GTLC agreed to provide services. Plaintiffs have submitted a document entitled “Tour Operator Contract,” which governs the terms of the sale of room blocks and river float trips to Tauck. Plaintiff’s Resp. to Motion for Summary Judgment on Joint Venture, Ex. 5. Several witnesses, officials of Tauck, testified that they viewed GTLC as a supplier, not as a partner. Nevertheless, viewing [*31] the contract in the light most favorable to Plaintiffs, it is not unreasonable to characterize it as an agreement for the purposes of this joint venture analysis.

The Court also finds that a reasonable jury could find that Tauck and GTLC had a common purpose. This purpose was to sell tour members lodging and river float trips. Tauck’s purpose was somewhat broader, generally, because it sold lager tours of which the interaction with GTLC was a small part, but this does not remove the fact that GTLC and Tauck were united in purpose during this portion of the tour. Similarly, they both had a pecuniary interest in the enterprise. Tauck points out that GTLC received the same amount for its float tours whether its guests were members of a Tauck tour or individuals. But the arrangement nonetheless furthered GTLC’s financial goals by bringing significant numbers of guests to GTLC. Similarly, Tauck benefitted financially by featuring GTLC lodging and the float trip as part of its tour.

The Court does not find, however, that Tauck and GTLC had an equal right of control. Plaintiffs rely heavily on the fact that both business had the capability to cancel the float trip at their discretion, but that [*32] does not suggest an equal voice in the activity in question. For example, the evidence submitted to the Court indicates that the Tauck tour director brought the residents to the lodge and interacted with GTLC staff, but there is no indication that any Tauck official had the authority to direct any day-to-day activities. It had no input into the decision to hire Mr. Hobbs, the guide of Raft No. 2, or to direct the manner in which he conducted the rafting trip. Tauck could not have directed that the river guide take the group down a different part of the river, or terminated the guide’s employment. If GTLC had decided to terminate its river floating operations, Tauck would have been powerless to prevent it, aside from the scope of any service contract that was currently in place. Tauck and GTLC were two separate operations, and there is no evidence submitted to the Court that suggests otherwise. The Court finds, as a matter of law, that Tauck and GTLC did not have a joint venture.

The Court notes that, with no direct liability and no joint venture resulting in vicarious liability, Tauck is not liable for any claims of negligence.

Fraud

Plaintiffs have alleged that GTLC and Tauck committed [*33] fraud by enacting a scheme whereby the tour members were lured into taking a dangerous rafting trip as a result of GTLC and Tauck’s material misrepresentations regarding the level of danger. “To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation.” Garrison v. CC Builders, Inc., 2008 WY 34, 179 P.3d 867, 877 (Wyo. 2008). The false representation must be made knowingly: “One cannot be guilty of fraudulently or intentionally concealing or misrepresenting facts of which he is not aware.” Meeker v. Lanham, 604 P.2d 556, 559 (Wyo. 1979). Plaintiffs’ fraud claim fails because they have failed to provide evidence from which a reasonable jury could find by clear and convincing evidence that Defendants knowingly made a false representation of a material fact.

Plaintiffs first cite statements made in Tauck’s travel brochure discussing the rafting trip. “[T]he record shows that Tauck’s 2006 Brochure described the Snake River as a ‘meandering float trip,’ when in actuality, the Plaintiffs’ [sic] ended up on a whitewater raft trip with Class IV rapids.”
[*34] Plaintiffs’ Resp. to Motion for Summary Judgment on Fraud Claim, 8. Plaintiffs also cite statements in Tauck’s promotional materials stating that its tour directors are “knowledgeable professionals, with a wealth of information,” and that Tauck “does it all for you,” and that tour members can “leave all day-to-day details” to Tauck. Id.

For the most part, these promotional statements are “mere puffery” E.g., Alpine Bank v. Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009). The one arguable exception is the description of the activity as a “meandering float trip,” which may be sufficiently definite that a sensible person may be justified in relying on it to some degree. Even in that case, however, there is no indication that Tauck was aware that the river floating trip would be anything other than as described.

The key problem with Plaintiffs’ case is that there is no indication that this particular stretch of the Snake River was inherently dangerous on the day of the collision. Instead, the evidence, viewed in a light most favorable to Plaintiffs, indicates that the guide of the raft that collided with the log jam took the raft into an unsafe channel. For example, the deposition of Wayne Johnson, one of the river guides on June 2, 2006, indicates [*35] that he viewed the “Funnelcake” channel as dangerous on that date. Johnson Depo. 184. Mr. Reed Finlay, a river guide with a different company, testified at some length about the “Funnelcake” channel, specifically that it was dangerous on the date of the collision. Finlay Depo. 126-32. Indeed, it is undisputed that the float trip on the day of the collision was peaceful and uneventful until Raft No. 2 entered the channel and struck the log jam. J. Wilson Depo. 76-77; R. Rizas Depo. 102, 209, 219. In short, there is no indication that Tauck made a misrepresentation when the rafting trip was marketed as a “meandering float trip.”

Plaintiffs also rely on several statements made by employees of Tauck and GTLC before the raft trip. First, Mr. Wilson saw saw people white water rafting while on the bus trip into Jackson on June 1, 2006. When the he asked the tour director, Mr. Rice, if that was what their rafting trip would be like, Mr. Rice replied that the rafting trip would be a “leisurely, scenic float down the Snake River,” and not to worry. Mr. Rice also stated that Tauck had “never lost anybody.” L. Wilson Depo. 61-62. Second, while the groups were in the GTLC vans on the way to the [*36] river, Ms. Elizabeth Rizas asked the van driver about the safety of the float trip. The van driver responded by telling her that she was more likely to be in an accident in the van traveling to the river than on the float trip. J. Wilson Depo 39-40. There is also some evidence that the van driver also stated that they had “never lost anybody yet.” Id. 60.

Again, there is no evidence indicating that these statements are deliberately false. Much like Tauck’s advertising, there was no reason for Tauck or GTLC to believe that the rafting trip would be anything other than a leisurely, scenic float trip. Although Plaintiffs repeatedly rely on the fact that the river was flowing stronger and faster than usual because of the spring thaw, there is no evidence suggesting that this change in conditions precluded GTLC from being able to provide the safe and relaxing experience that the tour members were expecting. The additional fact that the float trip resulted in a devastating collision instead is not relevant when considering what Tauck and GTLC knew at the time they made the statements at issue.

Lastly, Plaintiffs contend that Defendants committed fraud by failing to inform them of the full nature [*37] of the risks on this particular float trips. The Court finds that any failure to inform the guest of these dangers is not actionable as a matter of law. First, there can be no fraud because there is no statement involved. The Court also relies on the Wyoming Supreme Court’s explicit refusal to adopt the tort of nondisclosure in Pittard v. Great Lakes Aviation, 2007 WY 64, 156 P.3d 964, 976 (Wyo. 2007). Plaintiffs have failed to establish the existence of a genuine issue of material fact that would preclude summary judgment in Defendants’ favor on the fraud issue.

Punitive Damages

GTLC has moved to dismiss Plaintiffs’ claim for punitive damages.3 Plaintiffs’ response is similar to their fraud argument, that is, that GTLC deliberately misrepresented the float trip as safe and leisurely.

3 Tauck has also moved for summary judgment in its favor on the punitive damages issue. The Court, however, has already determined that Tauck is not liable, either directly or vicariously. Accordingly, the Court’s discussion addresses only Plaintiffs’ claim as it applies to GTLC.

The Wyoming Supreme Court has set out the following standard regarding punitive damages:

We have explained that punitive damages “are to be awarded only for conduct involving some element of outrage, similar to that usually found in crime. . . . We have approved punitive damages in circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct.” Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986). Willful and wanton misconduct is the intentional doing, [*38] or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. Mayflower Rest. Co. v. Griego, 741 P.2d 1106, 1115 (Wyo. 1987). “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo. 1986) (internal citation omitted).

Cramer v. Powder R. Coal Co., 2009 WY 45, 204 P.3d 974, 979-80 (Wyo. 2009).

Plaintiffs reason as follows:

Defendants here should have communicated the true Snake River conditions to the Plaintiffs rather than misrepresent the conditions and intentionally take the guests who had signed up for a scenic float trip into something knowingly quite different. Defendant’s failure to communicate the details indicates “reckless disregard of the consequences, and under such circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another.” Danculovich [v. Brown], 593 P.2d [187,] 191.

Plaintiffs’ Response to Motion for Summary Judgment on Punitive Damages [*39]
, 11.

Plaintiffs’ contention that GTLC was aware that the float trip was materially more dangerous than previously represented to the tour members is not, as the Court has discussed, reflected in the record. Although it is undisputed that the level and flow of water was increased, and that this increase may heighten the risk of log jams or hide obstructions in the river, there is no evidence suggesting that the character of the river was altered to such an extent that it was willfully reckless to take passengers on the float trip.

The facts of this case are in stark contrast to those cases relied on by the Plaintiffs in which the Wyoming Supreme Court overturned trial courts’ grants of summary judgment in defendants’ favor on punitive damages. For example, the conduct alleged in Danculovich was drunk driving and speeding resulting in the driver losing control of the vehicle and killing the decedent. 593 P.2d at 190. The evidence in that case indicated that the defendant, who was driving the vehicle, had a blood alcohol content of 0.12%. Id. The court described the evidence of speeding as follows:

Radar clock of vehicle at 56 m.p.h. was made at north edge of business district. A witness estimated speed [*40] at 75 m.p.h. at city limits. Another witness estimated speed at 85 m.p.h. when vehicle passed him at point about .4 of mile before place of accident. Accident reconstruction expert estimated speed at place of accident to be minimum of 75 m.p.h. The speed limit within the city limits was 30 m.p.h. and beyond the city limits, 55 m.p.h.

Id. n.3. In Errington v. Zolessi, a treating physician conducted several cystograms of a patient following a laparoscopically assisted vaginal hysterectomy. 9 P.3d 966, 968 (Wyo. 2000). The cystograms initially indicated the presence of a fistula, and later confirmed it, but the doctor told the patient that she was healing normally, albeit slowly. Id. The Wyoming Supreme Court held that there was sufficient evidence that would allow a reasonable jury to find that the physician acted with reckless disregard for the patient’s safety. In either case, it is apparent that simply failing to advise the tour group members of the increased flow of the river does not rise to the level of reckless and willful misconduct. There is no question that the consequences of any negligence committed were devastating. But this Court must evaluate the question of outrageous conduct based on what was known [*41] at the time of the allegedly negligent act, not looking back at events with the benefit of hindsight. This is not to say that this conduct may not constitute simple negligence, but it does not warrant punitive damages.

IT IS ORDERED that Tauck’s Motion for Summary Judgment on Wyoming Recreational Safety Act, Docket No. 87, is DENIED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim of Negligence, Docket No. 81, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Joint Venture, Docket No. 84, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Fraud, Docket No. 90, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim for Punitive and Exemplary Damages, Docket No. 93, is GRANTED.

IT IS FURTHER ORDERED that Grant Teton Lodge Company’s Motion for Summary Judgment on Plaintiffs’ Claims, Docket No. 96, is granted in part and denied in part. Specifically, the motion is DENIED as it relates to application of the Wyoming Recreation Safety Act, and is in all other respects GRANTED.

Dated this day of October, 2009.

/s/ Alan B. [*42] Johnson

ALAN B. JOHNSON

UNITED STATES DISTRICT JUDGE


Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.

Motions by the defendant eliminated a lot of the claims of the plaintiff; however, the reckless claims are always a pain used to negotiate a settlement. If the judge bought the idea, maybe the plaintiff can get the jury to buy the idea.

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

State: Ohio, Court of Common Pleas, Summit County, Civil Division

Plaintiff: Michael A. Cantu, et al,

Defendant: Flytz Gymnastics, Inc., et al,

Plaintiff Claims: Negligence, willful, wanton and reckless action and Product Liability

Defendant Defenses: Release, Assumption of the Risk and the Statute of Repose

Holding: For the Defendant and the Plaintiff

Year: 2016

Summary

Recreation activities have moved indoors for more than 75 years. Now, all sorts of outdoor recreation activities have moved indoors and created additional activities and variations of those activities.

This decision concerns injuries received when the plaintiff jumped into a foam pit. The plaintiff and friends were there to practice skiing jumps. When the plaintiff landed he became a quadriplegic and sued for negligence, gross negligence and product liability claims.

Facts

The plaintiff and his friends decided to go to the defendant’s facility to practice skiing flips. The facility had a foam pit where the participants could land. While using a springboard to go over a vault the plaintiff landed head first in the pit sustaining a spinal cord injury rendering him a quadriplegic.

The plaintiff was a minor and had been driven to the facility by his mother. Both, he and his mother signed the release to participate in the activity. His mother claimed the form was long, and she did not read it. (The release was one page.)

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long,….

The plaintiff and his parents admitted they had signed releases before, knew that the activities were risky and had participated in other risky activities and had been injured doing so.

The defendants filed a motion for summary judgment, and this is the decision of the court.

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

Ohio allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue and Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998).

The release in question described the risks of the activity and included the risks and resulted in the plaintiff suffered, “including permanent disability, paralysis and death, which may be caused.”

A release is a contract and under Ohio law to be valid a contract must be “clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware.” The court found this release met those requirements.

The plaintiffs argued the they were fraudulently induced to sign the release. A release signed by fraudulent inducement is voidable upon proof of the fraud. However, that fraud must be than saying you were misled if a reading of the contract would have shown that was not the case.

A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.”

The court found there was no fraud because the release itself was clear and there was no evidence from the plaintiff of any act or action that was fraudulent by the defendants.

The court granted the defendants motion for summary judgment to the negligence claims of the plaintiff.

The court also would have granted summary judgment to the defendants because the plaintiff assumed the risk of his injuries.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.”. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.”

The defense is not affected on whether or not the participant was able to appreciate the inherent dangers in the activity.

To defeat a primary assumption of risk defense the plaintiff must be able to prove the defendant’s conduct was reckless or intentional, and it does not matter if it is adults or minors organized or unorganized, supervised or unsupervised.

The plaintiff could not prove the actions of the defendant were reckless or intentional.

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

However, this part of the decision treads a narrow classification of the facts because the court found the plaintiff had pled enough facts for the reckless or intentional conduct claims to survive. The plaintiff pleaded and argued facts along with his expert witness “Defendant level of supervision and safety procedures, and whether, Defendant’s actions or inactions rose to the level of recklessness.”

The plaintiff’s expert argued the defendant failed to:

…ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution.

The final claim was a product liability claim arguing the foam pit was defective. The defendant argued the statute of repose applied.

The statute of repose is a statute that says if a claim against a product has not occurred in the first ten years after its creation, then no claims can be made after that period of time.

…no cause of action based on a product liability claim shall accrue against the manufacturer or sup-plier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another product.

The foam pit had been constructed in 2000, and the plaintiff’s injury occurred in 2011. Consequently, the ten-year statute of repose had run preventing the plaintiff’s product liability claim.

The court granted the defendants motion for summary judgment for all claims of the plaintiff except for the claim of recklessness, which could lead to punitive damages.

So Now What?

Foam pits, trampolines, free fall towers join climbing walls indoors as types of activities or training for outdoor recreation activities are popping up everywhere. What used to be confined to Olympic training venues can now be accessed on the corner with a credit card.

We are going to see more of these types of actions. Like any recreational activity, they advertise, make promises, and are still in a growing mode both in the number of locations and the learning process in how their liability will evolve.

What do you think? Leave a comment.

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Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Michael A. Cantu, et al, Plaintiffs vs. Flytz Gymnastics, Inc., et al, Defendants.

CASE NO. CV-2014-01-0317

State of Ohio, Court OF Common Pleas, Summit County, Civil Division

2016 Ohio Misc. LEXIS 12186

June 2, 2016, Filed

CORE TERMS: summary judgment, reckless, wanton, willful, gymnastics, waiver form, moving party, nonmoving party, pit, releasee, liability claim, recreational activities, issue of material fact, genuine, foam, claims of negligence, repose, sports, genuine issue, initial burden, punitive damages, recklessness, inducement, indemnity, matter of law, fact remains, loss of consortium, inherent risks, assumption of risk, proprietor’

JUDGES: [*1] TAMMY O’BRIEN, JUDGE

OPINION BY: TAMMY O’BRIEN

OPINION

ORDER

The matters before the Court are, Defendant, Flytz Gymnastics, Inc.’s Motion for Summary Judgment filed on January 29, 2016, and, Defendant, John King’s Motion for Summary Judgment filed on January 29, 2016., Plaintiffs filed Separate Briefs in Opposition to these motions on March 4, 2016. Both, Defendants, Flytz Gymnastics, Inc. (“Flytz”) and John King (“King”), filed Reply briefs on March 21, 2016. For the reasons which follow, the Court GRANTS IN PART AND DENIES IN PART, Defendants’ Motions for Summary Judgment.

ANALYSIS

A. Facts:

The instant action arises out of an incident which occurred on August 22, 2011. On that day, Plaintiff Michael Cantu, sustained catastrophic personal injury when he attempted to use a spring board to go over a vault at Flytz Gymnastics and landed head first into a foam block pit. See, Plaintiffs’ Amended Complaint., Plaintiff sustained a spinal cord injury which left him a quadriplegic. See, Plaintiffs’ Amended Complaint.

Plaintiffs, Michael Cantu and his parents, have sued Flytz and its owner, King, alleging that they are liable for his injury., Plaintiffs have alleged that Flytz was negligent with respect to the “open [*2] gym night” attended by Michael Cantu and his friends and that this negligence resulted in Michael’s injury., Plaintiffs have further alleged that the conduct of Flytz and its employees, including King, was willful, wanton and reckless. In addition, Plaintiffs have brought a product liability claim against Flytz under R.C. 2307.71 et seq., Plaintiff’s parents, Aaron and Kristine Cantu, have also asserted a loss of consortium claim.

On the day in question, Michael was with a group of friends when one of them suggested that the group go to Flytz. Michael Cantu depo. at 57. This friend had been to Flytz before to practice his skiing flips. Id. at p. 43. Michael Cantu testified that the group intended to use the trampoline to practice ski tricks. Id. at 43, 63 and 93. Michael’s mother, Kristine Cantu, drove the group to Flytz.

Cantu and his friends were given Nonmember Release and Waiver Forms to read and sign. Because Michael was a minor, his mother signed the form on his behalf. Flytz Motion for Summary Judgment Exhibit B at pp. 32 and 33. Both Michael and his mother have acknowledged that neither of them read the entire form before Kristine signed it. Exhibit A at 69 and 103; Exhibit B at 34 and 35.

Subsequent [*3] to his injury, Kristine Cantu claimed that, had she read the release, she would never have allowed her son to participate in the activities. However, there is undisputed testimony from both Kristine and Michael Cantu that, throughout his life, Michael Cantu participated in many sports activities and many recreational activities, and that his mother signed release forms on his behalf in the past. Flytz Motion, Exhibit A at 18, 103; Flytz Motion, Exhibit Bat 15-16.

Plaintiff Michael Cantu, was involved in many sports and recreational activities and both he and his mother testified that they were aware that, inherent in those activities, there was always the risk of injury. Michael had previously participated in football, karate, volleyball and golf, and was interested in skiing, snowboarding and skateboarding. In fact, Plaintiff acknowledged he had sustained prior sports injuries. Flytz Motion, Exhibit B at 13-18.

Defendant Flytz moves for summary judgment on several bases which include the, Plaintiffs’ execution of a Release and Waiver form, the doctrine of primary assumption of the risk, lack of evidence of willful and wanton conduct by the, Defendants, and the statute of repose., Defendant [*4] King also moves for summary judgment.

B. Law and Analysis:

1. Standard.

In reviewing, Defendants’ Motions for Summary Judgment, the Court must consider the following: (1) whether there is no genuine issue of material fact to be litigated; (2) whether in viewing the evidence in a light most favorable to the non-moving party it appears that reasonable minds could come to but one conclusion; and (3) whether the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996); Wing v. Anchor Media, L.T.D., 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). If the Court finds that the non-moving party fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.E.2d 265 (1986).

Civ.R. 56(C) states the following, in part, in regards to summary judgment motions:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts

of the evidence in the pending case, and written stipulations of fact, if any timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Where a party seeks summary judgment on the ground that the nonmoving party cannot [*5] prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. Dresner, 75 Ohio St.3d at 293. The Dresner court continued, the moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Banks v. Ross Incineration, 9th App. No. 98CA007132 (Dec. 15, 1999).

In this case, [*6] as demonstrated below, this Court finds that summary judgment is appropriate as to the, Plaintiffs’ claims of negligence, but finds that a genuine issue of material fact exists as to, Plaintiffs’ claims of reckless and wanton conduct and punitive damages.

2. Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement (“Release and Waiver”).

The Release and Waiver Form signed by, Plaintiff Kristine Cantu, is entitled, “Nonmember/Special Event/Birthday Party Activity, Release and Waiver Form.” Flytz Motion, Exhibit C. After the name of the person and contact information, the verbiage of the release and waiver form warns that “this activity involves risks of serious bodily injury, including permanent disability, paralysis and death.” Id.

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Kristine Cantu depo. at 15-16. Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long, as is shown in part below:

Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement

In consideration [*7] of participating in the activities and programs at FLYTZ GYMNASTICS, INC., I represent that I understand the nature of this activity and that I am qualified, in good health, and in proper physical condition to participate in such activity. I acknowledge that if I believe event conditions are unsafe, I will immediately discontinue participation in this activity. I fully understand that this activity involves risks of serious bodily injury, including permanent disability, paralysis and death, which may be caused by my own actions, or inactions, those of others participating in the event, the condition in which the event takes place, or the negligence of the “releasees” named below, and that there may be other risks either not known to me or not readily foreseeable at this time and I fully accept and assume all risks and all responsibility for losses, cost and damages I incur as a result of my participation in the activity.

I hereby release, discharge, and covenant not to sue FLYTZ GYNMASTICS, INC., its respective administrators, directors, agents, officers, volunteers, and employees, other participants, any sponsors, advertisers and if applicable, owners and lessors of premises on which [*8] the activity takes place (each considered one of the “RELEASEES” herein) from all liability, claims, damages, losses or damages, on my account caused, or alleged to be caused, in whole, or in part, by the negligence of the “releasees” or otherwise, including negligent rescue operations and further agree that if, despite this release, waiver of liability and assumption of risk, I, or anyone on my behalf makes a claim against any of the Releasees, I will indemnify, save and hold harmless each of the Releasees from any loss, liability, damage or cost which may incur as a result of such claim.

I have read the RELEASE AND WAIVER OF LIABIITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law and agree that if any portion of this agreement is held to be invalid the balance, notwithstanding, shall continue in full force and effect.

The form specifically acknowledges that the activities and programs at Flytz involved “risks of serious bodily injury, [*9] including permanent disability, paralysis and death which may be caused” by the releasee’s actions or by the actions of others. It further identifies that “there may be risks either not known” or “not readily foreseeable” and that the releasee “accepts and assumes all risks for losses and damages.” Id. The form further releases claims of negligence by Flytz and includes a covenant not to sue, as well as indemnity and hold harmless provisions. The release was signed by Kristine Cantu on behalf of her son and indicated that she understood all the risks involved.

It is well established in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384; Zivich v. Mentor Soccer Club, Inc. 82 Ohio St.3d 367, 696 N.E.2d 201, 1998-Ohio-389. As noted by the Ninth District Court of Appeals, in order to be upheld, the contract must be clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist. 1997). In the instant action, the Release and Waiver Form signed by Kristine Cantu clearly meets these requirements.

Plaintiffs argue [*10] that the intake clerk, Stacey King, did not specifically advise Kristine that, by signing the forms, she would be absolving Flytz of liability for injuries sustained by her son, by his negligence or the negligence of others., Plaintiffs attempt to circumvent the Release and Waiver by alleging it is unenforceable because of fraud in the inducement. They argue that Kristine Cantu was induced to sign the form upon misrepresentations made by Stacey King.

The Court notes that, Plaintiffs have not pled fraud in their Amended Complaint. Even if, Plaintiffs can be found to have properly pled a claim of fraud in the inducement, a release obtained by fraudulent inducement is merely voidable upon proof of fraud. Holler v. horror Corp., (1990), 50 Ohio St.3d 10, 14 at ¶ 1 of the syllabus. “A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.” Haller, supra at 14. In the instant action, there is no evidence of fraud. The Court finds that, Plaintiffs were advised of [*11] serious inherent risks by virtue of the Release and Waiver Form. Accordingly, the Court GRANTS summary judgment on any claims of negligence.

3. Primary Assumption of Risk.

Even without the Release and Waiver, this Court would also find that the, Defendants are entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” Aber v. Zurz, 9th Dist No. 23876, 2008-Ohio-778, ¶9. “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.” (Citations omitted.) Bastian v. McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio – l149, ¶11.

As noted by the Ohio Supreme Court, the determining fact in such cases is the conduct of the defendant, “not the [*12] participant’s or spectator’s ability or inability to appreciate the inherent dangers of the activity.” Gentry v. Craycraft, 101 Ohio St.3d 141, 802 N.E.2d 1116, 2004-Ohio-

379, ¶9. To survive a primary assumption of risk claim, the, Plaintiff must prove the defendant’s conduct was reckless or intentional. Furthermore, “the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised.” Gentry, supra at ¶8.

In the instant action, there can be no dispute that, Plaintiff Michael Cantu was engaged in a recreational activity at the time of his injury. Likewise, there can be no dispute that a fall, like that sustained by Michael, is an inherent risk in gymnastics, particularly when one is using a springboard to go over a piece of equipment. As such, there can be no recovery by, Plaintiffs unless it can be shown that Flytz’s actions were either “reckless” or “intentional.” Gentry, supra at ¶6 quoting Marchetti, supra at syllabus; see also, Mainv. Gym X-Treme, 10th Dist. No. 11A0-643, 2102-Ohio-1315 (Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity [*13] unless the defendant acted recklessly or intentionally in causing the injuries. Id. at9.)

Accordingly, Defendants entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk. However, because the, Plaintiffs also claim that, Defendants acted in a reckless, willful and wanton manner, this does not end the analysis.

3. Reckless or Intentional Conduct and Punitive Damages.

The Supreme Court of Ohio has held that there can be no liability for injuries arising out of sporting or recreational activities unless the defendant was reckless or intentionally injured the, Plaintiff. Marchetti v. Kalish, 53 Ohio St.3d 95, 96-98, 559 N.E.2d 699 (1990). In this case, the Court finds that there are genuine issues of material fact as to whether or not, Defendants engaged in recklessness or willful or wanton conduct which resulted in injury to Michael Cantu.

All parties cite to testimony which appears to create genuine issues of material fact related to the instructions given by the, Defendants, Michael Cantu’s responding behavior, Defendant level of supervision and safety procedures, and whether, Defendants actions or inactions rose to the level of recklessness.

Plaintiffs have also cited the testimony [*14] of their expert, Gerald S. George, PhD. Dr. George reviewed industry rules and regulations and examined the facts and evidence in this case. Dr. George admitted that under “appropriate conditions, gymnastics is a reasonably safe and healthy activity for young people.” He, however, cautioned that “in the absence of appropriate safeguards, however, gymnastics becomes an unreasonably dangerous activity. Report at p. 2. Dr. George opines that, Defendants violated a number of safety regulations including “failing to ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution. [*15]

Upon this examination, the Court determines that genuine issues of material fact related to, Defendants’ alleged recklessness and/or willful and wanton conduct exist. Therefore, summary judgment is inappropriate on this issue. Because a question of fact remains on the issue of reckless and/or willful and wanton conduct, summary judgment on the issue of punitive damages is also denied.

4. Ohio’s Product Liability Statute, R.C. 2307.71et seq.

Defendants have also moved for summary judgment on the, Plaintiffs’ product liability claim related to the foam pit into which Michael Cantu fell., Defendants argue that this claim is barred by the statute of repose. This Court agrees.

The statute of repose applicable to claims of product liability, R.C. 2305.10 (C) (1) provides:

Except as provided in division (C)(2), (3), (4), (5), (6), and (7) of this section or in Section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another [*16] product.

The evidence demonstrated that the foam pit was constructed in 2000, and that there were no modifications to the pit at any time thereafter. John King depo. at 61, 67 and 85., Plaintiff’s accident occurred on August 22, 2011, 11 years after the installation of the foam pit. Pursuant to the specific language of R.C. 2305.10 (C) (1), Plaintiffs’ product liability claim is barred by the statute of repose.

From review of, Plaintiff’s brief, Plaintiffs appear to have abandoned this argument. Also, as discussed above, claims for negligence have been released by the, Plaintiffs. However, even barring that analysis, the statute of repose also applies to the, Plaintiffs’ product liability claim, and this claim is, therefore, barred.

5. Consortium.

The claims for loss of consortium by Michael Cantu’s parents, and punitive damages claim are directed at both, Defendants. A cause of action that is based upon loss of consortium is a derivative claim. Messmore v. Monarch Mach Tool Co., 11 Ohio App.3d 67 (9th Dist., 1983). As this Court has determined that, Plaintiff Michael Cantu is not entitled to recovery on negligence claims, the same applies to his parents. However, as genuine issues of material fact remain on the issues of reckless and/or willful and wanton conduct, as well [*17] as on punitive

damages, this Court denies summary judgment to both defendants on the loss of consortium and punitive damages claims.

CONCLUSION

Upon due consideration, after review of the briefs of the parties, the applicable law, exhibits, testimony and other evidence, the Court GRANTS, Defendants’ Motions for Summary Judgment as a matter of law on, Plaintiffs’ negligence claims. However, the Court finds that genuine issues of material fact remain as to whether, Defendants were reckless or acted in a willful or wanton manner. Accordingly the Court DENIES summary judgment as it pertains to, Plaintiffs’ claims of recklessness, and their claims for punitive damages.

The Final Pretrial previously schedule on July 22, 2016 at 8:30 AM, as well as the trial date of August 1, 2016, are confirmed.

IT IS SO ORDERED.

/s/ [Signature]

JUDGE TAMMY/O’BRIEN

Attorneys Terrance P. Gravens/Kimberly A. Brennan

Attorney Michael W. Czack


Words and Phrases Defined in an Articles

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

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

Term or Phrase

State

Article that Defines the Term or Phrase

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

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

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

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

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

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

Good News ASI was dismissed from the lawsuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Last Updated April 24, 2018


A Motion to Strike is used by the defendant to eliminate the threat of punitive damages in this fatality claim.

The deceased had entered onto the land of the defendant and was using a rope swing to jump into a lake. She died, somehow, using the swing and her estate sued the landowner.

Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford – Norwalk, at Stamford

Plaintiff: Renee Kopesky

Defendant: Connecticut American Water Company

Plaintiff Claims: wrongful death (?)

Defendant Defenses: Motion to Strike

Holding: for the defendant

Year: 1999

Summary

This motion to strike was used to take punitive damages off the table in the litigation. This takes a lot of pressure off the defendant and deals a significant blow to the plaintiff. The damages in the case are dropped significantly probably increasing the chance of a settlement.

Facts

The plaintiff is the administratrix of the estate for the deceased. The deceased entered on to land owned by the defendant and died when she fell off a rope swing over a lake.

The defendant filed a motion to strike. A motion to strike is a preliminary motion used to eliminate claims that have no basis in the facts or the law does not allow.

The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of the complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) For purposes of a motion to strike, the moving party admits all facts well pleaded.”

The motion to strike may also be used to contest the legal sufficiency of any prayer for relief.

The defendant argued that the second count of the complaint, a claim for punitive damages was legally insufficient because it relies on the same facts the plaintiff basis their first claim on, negligence. Those facts did not support a claim for punitive damages.

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

The court first looked at the elements the plaintiff had to prove to a claim for punitive damages. To receive punitive damages the plaintiff would have to prove the defendant’s actions were reckless.

Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid a danger to others or to take reasonable precautions to avoid injury to them . . .”

A claim for negligence must be separate and distinct and based on additional facts from a recklessness claim.

There is a wide difference between negligence and reckless disregard of the rights or safety of others . . . A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made . . . In other words, it is clearly necessary to plead a [common law] cause of action grounded in recklessness separate and distinct from a negligence action.”

For the plaintiff to prove recklessness the actions of the defendant must be intentional and the conduct must be highly unreasonable.

In order to rise to the level of recklessness, [the] action producing the injury must be intentional and characterized by highly unreasonable conduct which amounts to an extreme departure from ordinary care . . .”

Here the court found the plaintiff had not pled the facts necessary to prove a claim of recklessness. Consequently, there could be not be a claim for punitive damages and the second count must be dismissed.

So Now What?

It seems odd to file a motion to eliminate one claim. However, like bunting in baseball, it has a greater effect than sacrificing a runner.

First, it makes your insurance company rest easier because most policies do not cover punitive damages. Eliminating this claim takes tremendous burden and conflict off the defendant and the insurance company.

Second, the damages have been dropped significantly. In this case, the damages are reduced to the lost value of the life of the deceased.

Finally, it deals a blow to the plaintiff. Litigation is a lot of back and forth, minor wins or losses over the course of the litigation. This is a slightly bigger loss for the plaintiff and will put both parties in a better position to negotiate a settlement.

What do you think? Leave a comment.

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Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

Renee Kopesky v. Connecticut American Water Company

CV 950145791

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD – NORWALK, AT STAMFORD

1999 Conn. Super. LEXIS 2166

August 2, 1999, Decided

August 2, 1999, Filed

NOTICE: [*1] THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

DISPOSITION: Defendant’s motion to strike second count of plaintiff’s amended complaint, and that portion of the prayer for relief claiming punitive damages, denied.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant brought a motion to strike the second count of plaintiff’s amended complaint and that portion of the prayer for relief claiming punitive damages in an action alleging that decedent sustained fatal injuries on defendant’s property because of defendant’s negligence and reckless conduct.

OVERVIEW: Decedent died when she fell from a swing on defendant’s property. Plaintiff brought an action against defendant, alleging that defendant was aware that the public entered their property to go swimming. The second count of plaintiff’s complaint alleged that defendant’s acts or omissions were done recklessly, wantonly, carelessly, and with a reckless disregard for the consequences of its acts or omissions. Defendant brought a motion to strike count two of plaintiff’s complaint and that portion of the prayer for relief claiming punitive damages. The court ruled that a motion to strike could be used to contest the legal sufficiency of any prayer for relief. Further, the court held that an action sounding in reckless conduct required an allegation of an intentional act that resulted in injury. Also, the court found that in order to rise to the level of recklessness, the action producing the injury must be intentional and characterized by highly unreasonable conduct which amounted to an extreme departure from ordinary care. The court, viewing the allegations in the light most favorable to plaintiff, denied the motion, concluding that the allegations did rise to the level of recklessness.

OUTCOME: Motion to strike the second count of plaintiff’s complaint and that portion of the prayer for relief claiming punitive damages was denied where, viewing the complaint in the light most favorably to plaintiff, plaintiff alleged facts sufficient to state causes of action sounding in negligence and recklessness.

CORE TERMS: recklessness, quotation marks omitted, reckless, sounding, reckless disregard, judicial district, favorably, prayer, decedent, common law, reckless conduct, legal sufficiency, cause of action, contest, viewing, fatal injuries, punitive damages, carelessness, recklessly, omissions, wantonly, swing

JUDGES: D’ANDREA, J.

OPINION BY: D’ANDREA

OPINION

MEMORANDUM OF DECISION RE: MOTION TO STRIKE

The plaintiff, Renee Kopesky, the administratrix for the estate of Tiffany Jean Kopesky, brought this action against the defendant, Connecticut American Water Company, for damages sustained by the plaintiff’s decedent. The plaintiff alleges that the plaintiff’s decedent sustained fatal injuries on the defendant’s property, when she fell from a rope swing as she attempted to swing out into the water. The plaintiff alleges that the defendant was aware that the public entered their private property to go swimming, hiking, camping and fishing. In the first count of the amended complaint, the plaintiff alleges that the plaintiff’s decedent suffered severe painful and fatal injuries as a result of the defendant’s negligence and carelessness. In the second count, the plaintiff alleges that [*2] the defendant’s “acts and/or omissions . . . were done recklessly, wantonly, carelessly and with a reckless disregard for the consequences of its acts and/or omissions.”

The defendant moves to strike count two of the plaintiff’s amended complaint and that portion of the prayer for relief claiming punitive damages. The defendant argues that “count two is legally insufficient because a claim for recklessness cannot be established by relying upon the same set of facts used to establish negligence. The second count of plaintiff’s amended complaint simply restates the facts underlying the plaintiff’s claim for negligence. Reiterating the same underlying facts of a negligence claim and renaming the claim as one for recklessness does not transform ordinary negligence into recklessness.”

” [HN1] The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of the complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). ” [HN2] For purposes of a motion to strike, the moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994); [*3] see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). “The court must construe the facts in the complaint most favorably to the plaintiff.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

The motion to strike may also be used to contest the legal sufficiency of any prayer for relief. See Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 298 n.4, 478 A.2d 257 (1984); Central New Haven Development Corp. v. Potpourri, Inc., 39 Conn. Supp. 132, 133, 471 A.2d 681 (1993); Practice Book 10-39(a)(2).

” [HN3] Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid a danger to others or to take reasonable precautions to avoid injury to them . . .” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). [*4]

This court has previously held that “the allegations of one count of a complaint based on a common law reckless conduct must be separate and distinct from the allegations of a second count sounding in negligence . . . There is a wide difference between negligence and reckless disregard of the rights or safety of others . . . A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made . . . In other words, it is clearly necessary to plead a [common law] cause of action grounded in recklessness separate and distinct from a negligence action.” (Alterations in original; internal quotation marks omitted.) Thompson v. Buckler, 1999 Conn. Super. LEXIS 199, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 153798 (Jan. 27, 1999) ( D’Andrea, J.), Epner v. Theratx, Inc., 1998 Conn. Super. LEXIS 603, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 161989 (Mar. 10, 1998) (D’Andrea, J.). “In short, [HN4] an action sounding in reckless conduct requires an allegation of an intentional act that results in injury.” Id.

” [HN5] In order to rise to the level of recklessness, [the] action producing the injury must be intentional and characterized [*5] by highly unreasonable conduct which amounts to an extreme departure from ordinary care . . .” (Alterations in original; internal quotation marks omitted.) Epner v. Theratx, Inc., supra, 1998 Conn. Super. LEXIS 603, Superior Court, Docket No. 161989, citing Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). In the present case, viewing the allegations in the light most favorably to the plaintiff, the allegations do rise to the level of recklessness.

“If the alleged facts constitute recklessness . . . using the same facts in the negligence count does not prevent them from also being reckless. The test is whether the alleged facts amount to recklessness.” Walters v. Turrisi, 1997 Conn. Super. LEXIS 1011, Superior Court, judicial district of New London at New London, Docket No. 541162 (Apr. 15, 1997) ( Hurley, J.). “The mere fact that the allegations and factual assertions in a reckless count are the same or similar to one in a negligence count shouldn’t ipso facto mean the reckless count cannot be brought. The test is whether the facts alleged establish a reckless count. If they do all it would mean is that the plaintiff is pleading in the alternative.” Cancisco v. Hartford, 1995 Conn. Super. LEXIS 1885, Superior Court, judicial [*6] district of Hartford-New Britain at Hartford, Docket No. 519929 (June 26, 1995) (Corradino, J.).

In this case, viewing the complaint in the light most favorably to the plaintiff, the plaintiff has alleged facts sufficient to state causes of action sounding in negligence and recklessness. The first count of the plaintiff’s amended complaint contains twenty-five paragraphs of allegations relating to the defendant’s conduct regarding the incident in question. In the first count, the plaintiff alleges that that conduct amounts to the defendant’s negligence and/or carelessness.

In the second count, the plaintiff realleges and incorporates those twenty-five paragraphs from the first count and then alleges, in paragraph twenty-six, that the aforementioned conduct indicates that the defendant acted recklessly, wantonly and with a reckless disregard for the consequences. The allegations in the second count do rise to the level of recklessness. Accordingly, the plaintiff has pled an alternative cause of action sounding in recklessness, separate and distinct from the negligence count. Therefore, the defendant’s motion to strike the second count of the plaintiff’s amended complaint, [*7] and that portion of the prayer for relief claiming punitive damages, is hereby denied.

So Ordered.

D’ANDREA, J.


“Marketing makes promises Risk Management has to pay for” in this case, the marketing eliminated the protection afforded by the warning labels

Cornell and a manufacturer of a piece of equipment used in a gym at Cornell were being sued by an injured student who used the equipment. The court definitely was leaning towards the student; however, the student had come to court prepared, (and backed by a lot of money I’m guessing.)

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

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

Plaintiff: Randall Duchesneau

Defendant: Cornell University and Tumbltrak

Plaintiff Claims: Product Liability, Failure to Warn, requesting punitive damages

Defendant Defenses:

Holding: No duty, Failure to state a claim, Assumption of Risk & Release?

Year: 2012

This case spent four years getting to this point, and it is obvious the court is a little tired of the litigation. Consequently, the facts are difficult to determine.

It seems the plaintiff was a beginning gymnast and injured himself on a piece of equipment at the Cornell University gym called the Tumbletrak. The extents of his injuries are never clear, but based on the number of experts the plaintiff hired and the lengthy fight; I guess his injuries were extensive.

This case was being heard in a Pennsylvania Federal Court with a Michigan and a New York Defendant. That fact alone is confusing.

The decision is based on motions for summary judgment filed by both Cornell and the manufacturer Tumbletrak.

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

The court first examines the manufacture’s motion for summary judgment. The first issue the manufacturer claimed the plaintiff failed to establish the minimum facts necessary to go to trial; the plaintiff is not entitled to punitive damages, and the plaintiff assumed the risk. The court first looked at what was required to establish a failure to warn case. Meaning a manufacturer has a duty to warn users of the product of the risks and failed to do so.

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause of the injury to plaintiff; and (4) the plaintiff suffered loss or damage.

The burden is on the plaintiff to prove the failure to warn of the risk by the manufacturer was the cause of the plaintiff’s injury.

This burden includes adducing proof that a user of the product at issue would have read and heeded a warning had one been given. Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.”

Failure to warn can be denied both by proving the plaintiff read and heeded the risk or knew of the risk prior to using the equipment. The manufacturer argued the risk was open and obvious, which does not require proof because the plaintiff should have seen the risk.

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding

In a footnote at this point, the court states the plaintiff signed a release stating he understood the risks; however, nothing else is mentioned about the release in the rest of the decision.

One way to defend against a motion for summary judgment is to argue there are enough facts or issues that make the facts relied upon by the defendant an issue.  Meaning if enough facts are in dispute, the motion for summary judgement cannot be granted. This is what the plaintiff did through his experts.

Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. [Emphasize added]

Here the manufacturer shot his defense down before the product left the assembly plant by confusing risk management and marketing. Teddy bears doing the activities unspotted that the warning allegedly warns against eliminated the warning in the court’s eyes. (And rightfully so!) If the manufacturer shows cartoons doing the act without regard for safety, then the act must be safe, no matter what the warning says. If the warning can be located.

In a scary statement, the court held that failure to read the warnings on the product is not an issue in a failure to warn case.

However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”

The court based this analysis on the many different statements by witnesses who seemed to go in every direction, but all stated they never saw the warning.

Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter.

A warning does not exist unless the consumer can’t miss it. Meaning the warning must be in the consumer’s face every time they go to use a product. On top of that the warning must be in the manual, in some states on the packaging and maybe on a hangtag with the product.

The failure to warn claim was sustained and would be decided at trial.

The court then looked at the assumption of the risk defense brought by the defendant manufacturer. The court started this analysis looking at the requirements to prove a negligence claim in a product case.

To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff.

However, assumption of the risk in a product’s case is a little more stringent then in a recreation case. “Assumption of risk is frequently applied to claims arising out of participation in sporting events.” In sporting or recreation cases, the risk is clear and understood by all involved and to be effective the risk was not altered or enhanced by the defendant. In a product’s case the requirements are slightly different.

Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. To establish assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” This determination depends in part on the openness and obviousness of the risk.

Again, the case goes back to did the plaintiff know of the risks. Where the risks open and obvious or can you prove under the law the plaintiff knew of the risk. Because no one ever saw the warning, the warning had no value. That left it up to a jury to decide if the plaintiff knew the risk of the sport or activity.

The next argument was a motion to eliminate a punitive damages claim by the manufacturer arguing the case should be tried under Michigan’s law because the manufacturer was based in Michigan. Michigan does not allow punitive damages, unless they are expressly authorized by statute.

There has been a prior argument about the jurisdiction and venue of the case decided by a prior judge. (Which is alone confusing since none of the defendants are located in Pennsylvania where the court sits, however, the court is applying New York law?) Because of the prior decision, this court followed it and ruled that New York law would be applied to the facts of the case, and punitive damages were going to be at issue.

Cornell University was then giving a shot at its motions starting with the punitive damages issue. Cornell claimed the plaintiff had not presented any evidence that could support a punitive damages claim. The plaintiff responded arguing facts that could prove a punitive damages claim against the university.

(1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.”

The court defined the requirements to prove a punitive damages claim.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”

The court found there was sufficient evidence to support a possible punitive damages claim.

There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

Cornell next argued that the plaintiff assumed the risk and there was no evidence proving causation. Cornell was arguing a breach of a duty was not related to the injury. There was no causation between the two which is required to prove negligence.

The court found that Cornell’s case law did not apply correctly to the facts of this case. That means the case law facts were sufficiently different from the facts of this case, that the law could not be interpreted the same way. “Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here.”

On the causation issues the judge found the plaintiff had presented enough evidence that there could be an issue leading to punitive damages against the college.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

Both defendants failed in their motion for summary judgment, and the decision was to allow the case to proceed to trial.

So Now What?

I have not been able to find the outcome of this case. Meaning it probably settled. The entire issue was the warning on the product; it was not clear; it was not visible, and it could not be seen in normal use.

If you manufacture products and your product poses a risk to the user, then you need to notify the consumer as often and as many were possible that you can. User manuals, hangtags, the container or bag the product is shipped in and on the product itself. It is also not enough that you can say the label or warning is there; the user must be able to see the warning……every time.

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Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Randall Duchesneau, Plaintiff, v. Cornell University, et al., Defendants.

CIVIL ACTION NO. 08-4856

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2012 U.S. Dist. LEXIS 106412

July 31, 2012, Decided

July 31, 2012, Filed

PRIOR HISTORY: Duchesneau v. Cornell Univ., 2011 U.S. Dist. LEXIS 135211 (E.D. Pa., Nov. 22, 2011)

CORE TERMS: warning, summary judgment, trampoline’s, assumption of risk, punitive damages, unaware, gymnasium, warn, partial, failure to warn, novice, user, assumed risk, inappropriate, punitive, flip, matter of law, warning label, recklessness, supervision, performing, gymnastic, enhanced, hazard, adduce, facie, causation, choice of law, applicable law, case of failure

COUNSEL:  [*1] For RANDALL DUCHESNEAU, Plaintiff: STEWART J. EISENBERG, LEAD ATTORNEY, DANIEL JECK, DANIEL JOSEPH SHERRY, JR., DINO PRIVITERA, KENNETH MICHAEL ROTHWEILER, EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C., PHILADELPHIA, PA; MICHAEL CHOI, CHOI & ASSOCIATES, ELKINS PARK, PA.

For CORNELL UNIVERSITY, Defendant, Cross Claimant: RICHARD B. WICKERSHAM, JR., LEAD ATTORNEY, POST & SCHELL, P.C., PHILADELPHIA, PA; JOE H. TUCKER, JR., THE TUCKER LAW GROUP, ONE PENN CENTER AT SUBURBAN STATION, PHILADELPHIA, PA.

For TUMBLTRAK, Defendant, Cross Defendant: DANIEL J. MCCARTHY, SUSAN R. ENGLE, LEAD ATTORNEYS, MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS LLP, PHILADELPHIA, PA.

JUDGES: C. DARNELL JONES, II, UNITED STATES DISTRICT JUDGE.

OPINION BY: C. DARNELL JONES, II

OPINION

Jones, II, U.S.D.J.

MEMORANDUM

Before the Court is Defendant Tumbl Trak’s (“T-Trak”) Motion for Partial Summary Judgment (Docket No. 169); Cornell University’s Motion for Summary Judgment (Docket No. 171); Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172); and extensive briefing related thereto. 1

1 This matter has been crawling along, with a stunning amount of motion practice and briefing, for years now. The parties and  [*2] this Court are well aware of the tortured factual and procedural background of this case, and setting it forth at length again here would be a waste of judicial resources. Rather, I limit the discussion herein to specific facts as may be relevant to resolution of the Motion.

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which  [*3] that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and “must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).

T-Trak’s Motion for Partial Summary Judgment

T-Trak seeks partial summary judgment on three bases: (1) Plaintiff cannot establish a prima facie case of failure to warn; (2) Plaintiff is not entitled to punitive damages; and (3) Plaintiff assumed the risk of serious injury when using the Tumbl Trak apparatus (“TTA”). I address these seriatim.

Failure to Warn

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause  [*4] of the injury to plaintiff; and (4) the plaintiff suffered loss or damage. Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 179 (E.D.N.Y. 2008); McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997). The duty to warn can be breached by either “the complete absence of warnings as to a particular hazard,” or “the inclusion of warnings which are insufficient.” Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 610 (N.Y. App. Div. 1992). The adequacy of a warning is normally a question of fact to be determined at trial. Nagel v. Bros. Int’l Foods, Inc., 34 A.D.3d 545, 825 N.Y.S.2d 93, 95 (N.Y. App. Div. 2006).

2 On November 23, 2011, U.S. Magistrate Judge Lynne A. Sitarski analyzed choice of law inquiries in this case and determined New York law applies throughout. Additionally, no party disputes the application of New York law to the failure to warn and assumption of risk claims here. Accordingly, I apply New York law to those claims.

Plaintiff has the burden of proving that T-Trak’s failure to warn was a proximate cause of his injury. See Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282, 285 (N.Y. App. Div. 2007). This burden includes adducing proof that a user of the product at issue would have read and heeded  [*5] a warning had one been given. Sosna v. Am. Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (N.Y. App. Div. 2002). Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.” Humphrey, 556 F. Supp. 2d at 179-80 (citing Liriano v. Hobart Corp. (Liriano I), 92 N.Y.2d 232, 700 N.E.2d 303, 308, 677 N.Y.S.2d 764 (1998)).

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” Def.’s Mot. Part. Summ. J. (hereinafter “Def.’s Br.”) 21. More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding [TTA].” Id. T-Trak relies on, inter alia, the following record evidence:

o “Plaintiff, educated in physics, knew that what goes up will come down.” Id. 22; see id. Ex. H, at 380-81.

o Plaintiff  [*6] signed a waiver that stated he understood the risks and dangers associated with gymnastics. Id. Ex. F.

o There was a small warning label on the TTA which stated that any activity “creates the possibility of catastrophic injury, including paralysis or even death from falling on the head or neck. Id. Ex. G.

o Plaintiff “was aware of the safety concept of spotting and had done it in high school as a member of the cheerleading squad.” Id. 23; see id. Ex. H, at 432.

 

Based on these facts, T-Trak contends that “common sense” would have informed an individual that he or she was risking landing on their head by using the TTA, and, as such, T-Trak had no legal duty to warn Plaintiff. Id. 24.

However, there are significant disputes of material fact as to which, if any, hazards associated with the TTA were open and obvious (i.e., could be objectively ascertained) by a similarly-situated novice gymnast. Notably, Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA,  [*7] not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. Pl.’s Resp. Def. T-Trak’s Mot. Part. Summ. J. (hereinafter “Pl.’s Resp. Br.”) Ex. D, at 8-9. Dr. Vigilante’s report clearly suggests there were conflicting messages as to (1) the dangers associated with particular uses of the TTA; (2) how novices should perform backflips off the TTA; and (3) what is the appropriate level of supervision for safety purposes while using the TTA. Dr. Vigilante’s view of the facts is obviously in conflict with that of T-Trak. Cf. Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 798 N.Y.S.2d 629, 631 (N.Y. App. Div. 2005) (triable issue of fact concerning sufficiency of warnings raised through expert).

Apparently as a fallback position, T-Trak also asserts that because Plaintiff never sought to view the warnings prior to his accident, he cannot advance a failure to warn claim. However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.” Johnson, 588 N.Y.S.2d at 611.  [*8] This fact alone is insufficient to secure summary judgment. See Humphrey, 556 F. Supp. 2d at 180-81 (holding plaintiff’s admission that he did not read the warning label or operating instructions on equipment not dispositive under New York law in connection with failure to warn claim). Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. 3 Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter. 4 See Pl.’s Resp. Br. Ex. T.

3 This evidence is buttressed by the fact that T-Trak’s own warnings expert testified at his deposition that the warnings on the TTA were deficient, illegible, and violative of relevant industry standards pertaining to size. Pl.’s Resp. Br. Ex. S.

4 I do not find T-Trak’s argument that Plaintiff submitted a “sham affidavit” to be convincing.

In sum, this evidence of record establishes  [*9] sufficient material disputes of fact as to the level of awareness Plaintiff or any other objective, novice gymnast would have had concerning the danger of specific injuries while performing specific maneuvers on the TTA. Moreover, T-Trak has been unable to adduce undisputed evidence that Plaintiff would have disregarded a proper warning. Accordingly, summary judgment on the failure to warn claim is inappropriate.

Assumption of Risk

T-Trak contends it is entitled to summary judgment on Plaintiff’s negligence claim based on the principle of assumption of risk. 5 To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff. Martinez v Capital One, N.A.,     F. Supp. 2d    , 2012 U.S. Dist. LEXIS 42214, No. 10 Civ. 8028(RJS), 2012 WL 1027571, at *10 (S.D.N.Y. Mar. 27, 2012). Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 431 (S.D.N.Y. 1999); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 967-68, 510 N.Y.S.2d 49 (1986). To establish  [*10] assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” Hedstrom, 76 F. Supp. 2d at 432 (citing Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490, 495 (N.Y. App. Div. 1993)). This determination depends in part on the openness and obviousness of the risk. Id.

5 This argument applies only to Plaintiff’s negligence claim, as New York law does not favor an assumption of risk defense to strict liability claims. Auto. Ins. Co. of Hartford v. Electrolux Home Prods., Inc., 2011 U.S. Dist. LEXIS 12652, 2011 WL 1434672, at *2 (W.D.N.Y. 2011).

Assumption of risk is frequently applied to claims arising out of participation in sporting events. See, e.g., Goodlett v. Kalishek, 223 F.3d 32, 34 (2d Cir. 2000) (airplane racing); Rochford v. Woodloch Pines, Inc., 824 F. Supp. 2d 343, 349-51 (E.D.N.Y. 2011) (golf); Ducrepin v. United States, 964 F. Supp. 659, 664-65 (E.D.N.Y. 1997) (basketball); Mc Duffie v. Watkins Glen Int’l, Inc., 833 F. Supp. 197, 201-02 (W.D.N.Y. 1993) (auto racing); Morgan v. State, 90 N.Y.2d 471, 481-82, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997) (bobsledding and karate, but not tennis where facility’s negligence in failing to repair torn net unduly increased  [*11] the risk); Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650, 541 N.E.2d 29, 33-34, 543 N.Y.S.2d 29 (1989) (football); Joseph v. N.Y. Racing Ass’n, 28 A.D.3d 105, 809 N.Y.S.2d 526, 529 (N.Y. App. Div. 2006) (horseback riding); Hawley v. Binghamton Mets Baseball Club Inc., 262 A.D.2d 729, 691 N.Y.S.2d 626, 627-28 (N.Y. App. Div. 1999) (baseball). It has even been applied in some (but not all) cases involving jumping on a trampoline. 6 However these cases have a unifying theme — clear risks that were known yet disregarded by the plaintiff, with no negligence by the defendant that enhanced the risk. In cases where the plaintiff was unaware of the risk, or where the defendant’s negligence amplified the risk, summary judgment has not been granted. See, e.g., Clarke v. Peek ‘N Peak Recreation, Inc., 551 F. Supp. 2d 159, 163 (W.D.N.Y. 2008) (ski resort owner’s alleged negligence may have enhanced assumed risk); Hedstrom, 76 F. Supp. 2d at 435-36 (beginning trampoline user unaware and not sufficiently warned of risks); Repka, 798 N.Y.S.2d at 632-33 (assumed risk unduly increased by use of defective snowmobile without adequate warnings); Kroll, 764 N.Y.S.2d at 731 (plaintiff unaware of risk of trampoline’s defect). T-Trak argues vociferously that “Plaintiff  [*12] should have been aware of the risk of injury.” Def.’s Br. 31 (emphasis added). While it is true that Plaintiff had some experience with cheerleading and gymnastics, there is evidence he was a novice nonetheless. Additionally, as discussed supra, there is direct testimony that Plaintiff did not view any warnings and thus was not made explicitly aware of the contents thereof. There is further, disputed testimony as to the reasons why Plaintiff was unaware of the warnings, including evidence that the warnings were patently insufficient and no participant saw or became aware of their contents that day. The survey of trampoline cases herein makes it clear that the use of a trampoline has not been deemed inherently risky as a matter of New York law. All of these relevant disputes — namely, as to Plaintiff’s expertise, knowledge, the sufficiency and quality of the warnings, and the obvious nature of the risk to a casual user of the TTA — preclude this Court from absolving T-Trak on the grounds of assumption of risk. T-Trak’s duty to Plaintiff, if any, is properly an issue for trial.

6 Application of assumption of risk is a fact-specific endeavor, including in trampoline cases, which tend to  [*13] be decided depending on whether the plaintiff was aware of and appreciated the risk in using the trampoline. A plaintiff may prevail where he adduces evidence that he was unaware of the risk of using a trampoline and that he used the trampoline in an ordinary fashion. See, e.g., Hedstrom, 76 F. Supp. 2d at 427, 435 (finding no assumption of risk where plaintiff was a total beginner who did not see warning label and who used trampoline in a “fairly typical manner”); Kroll v. Watt, 309 A.D.2d 1265, 764 N.Y.S.2d 731, 731 (N.Y. App. Div. 2000) (affirming denial of summary judgment on assumption of risk where plaintiff’s awareness of risk of trampoline tipping over and thus causing plaintiff’s injury was a triable issue of fact). On the other hand, assumption of risk applies where the risk of the activity is inherent or where the injured party fully understands, appreciates, and voluntarily assumes the risk through participation. Goodlett, 223 F.3d at 36-37. New York courts have barred the recovery of plaintiffs injured while jumping on a trampoline where the plaintiff was aware of the risk or performed a particularly risky maneuver. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006)  [*14] (affirming application of assumption of risk where plaintiff failed to provide evidence that he was unaware of risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (2005) (finding assumption of risk where plaintiff was aware and appreciative of risk of using trampoline and used it nonetheless); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 728 (N.Y. App. Div. 1998) (holding assumption of risk applicable where plaintiff ignored sign warning against use of trampoline by two or more participants at the same time and then engaged in such activity).

Punitive Damages

U.S. Magistrate Judge Lynne A. Sitarski thoroughly and cogently examined choice of law issues in this case in deciding Defendant Cornell University’s Motion to Establish Applicable Law. See Duchesneau v. Cornell Univ., No. 08-4856, 2011, 2011 U.S. Dist. LEXIS 135211, WL 5902155, at *1 (E.D. Pa. Nov. 23, 2011) (order granting applicable law). T-Trak did not participate in the Motion to Establish Applicable Law. Rather, T-Trak asserts in the instant Motion that, while New York law is almost universally applicable in this case, Michigan law operates to bar recovery of punitive damages. In short, T-Trak contends that because it is domiciled  [*15] in Michigan and the alleged punitive conduct (design and labeling of the product) occurred in Michigan, Michigan law should apply to Plaintiff’s claim for punitive damages. Unsurprisingly, Michigan law bars punitive damage awards unless expressly authorized by statute, which is not the case here. See Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391, 400 (2004). Plaintiff maintains that New York law properly governs all aspects of this matter, including his punitive damages claim. New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton v. Brown & Williamson Holdings, Inc., 498 F. Supp. 2d 639, 653 (S.D.N.Y. 2007).

Judge Sitarski aptly laid out the applicable conflicts of law framework and conducted a thorough analysis of asserted interests, and this Court need not repeat the legal discussion at length here. Judge Sitarski concluded that New York law applied to Plaintiff’s claims against Cornell, including with regard to punitive damages and contributory negligence. I reach the same conclusion as to T-Trak for substantially the same reasons. Here, T-Trak knew the TTA was to be delivered and used in New York, and, indeed,  [*16] the TTA was used continuously in New York for many years prior to the accident. Generally speaking, courts applying the Pennsylvania choice of law contacts analysis to product liability matters have applied the law of the state where the product was used and where the accident occurred. Shields v. Consol. Rail Corp., 810 F.2d 397, 399-400 (3d Cir. 1987); U.S. Airways, Inc. v. Elliott Equip. Co., Inc., 2008 U.S. Dist. LEXIS 76043, 2008 WL 4461847 (E.D. Pa. Sept. 29, 2008). Plaintiff’s accident was non-fortuitous, and therefore great deference is given to New York as to the law which should apply. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069 (3d Cir. 1996).

Under the contacts analysis, New York has many compelling interests here: (1) the TTA is located in New York; (2) the accident occurred in New York; (3) Cornell contracted to purchase the TTA in New York; (4) Plaintiff was a student in New York; (5) Plaintiff, although a Pennsylvania resident, received treatment for his injuries in New York; and (6) the key Waiver Agreement in this case governs activities in New York and has its validity determined by New York law. The contacts with Michigan are markedly less. T-Trak’s headquarters is in Michigan. Some design and  [*17] testing of the TTA took place in Michigan. However, the TTA and its warnings were designed by a Washington resident, and the component parts of the TTA were manufactured in multiple states other than Michigan (including the pads which containing the warnings). The actual T-Trak dealer who negotiated the New York contract of sale for the TTA with Cornell was based in Georgia. Finally, the TTA was assembled in New York by Cornell from constituent pieces delivered from various locations. 7

7 These circumstances are readily distinguishable from those in Kelly v. Ford Motor Co., 933 F. Supp. 465 (E.D. Pa. 1996), upon which T-Trak heavily relies. In Kelly, much of the design, testing, assembly, and warning label placement occurred in various Michigan locales under the close coordination of Ford. As mentioned above, T-Trak did not even manufacture or assembly any parts of the TTA in Michigan. Kelly is not persuasive.

Accordingly, I conclude New York law applies to the question of punitive damages against T-Trak. Upon review of the record, I find Plaintiff has adduced sufficient evidence to allow the claim for punitive damages to proceed.

Cornell’s Motion for Partial Summary Judgment on Punitive [*18] Damages

Cornell claims that Plaintiff has failed to adduce any evidence that could justify punitive damages under New York law. Plaintiff responds that “Cornell’s relevant conduct is textbook-appropriate” in terms of punitive damages for multiple reasons: (1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.” See Pl.’s Resp. Opp’n Def. Cornell’s Mot. Summ. J. Punit. Damages 2-3.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton, 498 F. Supp. 2d at 653. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct  [*19] constitutes willful or wanton negligence or recklessness.” Buckholz v. Maple Garden Apts., LLC, 38 A.D.3d 584, 832 N.Y.S.2d 255, 256 (N.Y. App. Div. 2007); see also Mahar v. U.S. Xpress Enters., 688 F. Supp. 2d 95, 110 (N.D.N.Y. 2010) (allowing punitive damages in rare cases of egregious and willful conduct that is morally culpable); Black v. George Weston Bakeries, Inc., No. 07-CV-853S, 2008, 2008 U.S. Dist. LEXIS 92031, WL 4911791, at *7 (W.D.N.Y. Nov. 13, 2008) (permitting punitive damages where conduct constitutes conscious disregard of others); Bohannon (ex rel. Estate of Dolik) v. Action Carting Envtl. Servs., Inc., No. 06-CV-5689 (JG), 2008 U.S. Dist. LEXIS 40516, 2008 WL 2106143, at *3 (E.D.N.Y. May 20, 2008) (recognizing utter indifference to the safety of others warrants granting punitive damages).

Upon review of the record, I concur with Plaintiff that there is more than enough evidence to allow Plaintiff’s punitive damages claim to proceed. There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would  [*20] amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

III. Cornell’s Motion for Summary Judgment

Cornell moves for summary judgment on two bases: (1) Plaintiff assumed the risk of using the TTA and Cornell had no duty to supervise the use of gymnastic equipment by novices, and (2) there is no evidence as to causation concerning Cornell. There are so many material disputes of fact between Plaintiff and Cornell that a lengthy explication of them would be a waste of resources. Suffice it to say that, despite occasional rhetoric to the contrary, Plaintiff and Cornell disagree about nearly every major fact or opinion of record that relates to the issues raised in the Motion. 8 Specific to assumption of risk (discussed supra), there are considerable disputes over whether Plaintiff knew or appreciated the risks of the TTA. Cornell’s  [*21] assertions to the contrary appear to be mostly self-serving statements. Because Plaintiff has adduced plentiful evidence (testimony, admissions, experts) in support of the position that he was not aware of the relevant risk and could not be expected to be aware of that risk, summary judgment is obviously inappropriate. 9

8 These two parties have repeatedly filed briefs of excessive length (50-100 pages each), including unnecessary bolded or italicized text for emphasis, in which they highlight disputes of fact ad infinitum.

9 This conclusion is buttressed by the fact that, as discussed supra, there are even disputes of material fact as to whether (1) the risk of harm was obvious, open, or hidden, and (2) the risk of harm was enhanced by Cornell’s own actions.

Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006) (finding experienced gymnast with six years of instruction assumed known risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (N.Y. App. Div. 2005) (holding plaintiff assumed risk of using trampoline where she failed to  [*22] adduce evidence that she was unaware of the potential for injury); Palozzi v. Priest, 280 A.D.2d 986, 720 N.Y.S.2d 676, 676 (N.Y. App. Div. 2001) (affirming application of assumption of risk to teenager injured while “fake wrestling” on trampoline); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 729 (N.Y. App. Div. 1998) (noting plaintiff assumed risk of “double jumping” despite warnings on trampoline that were deemed adequate as a matter of law); Williams v. Lombardini, 38 Misc. 2d 146, 238 N.Y.S.2d 63, 64-65 (N.Y. Sup. Ct. 1963) (determining plaintiff assumed risk where he admitted seeing rule that prohibited “difficult tricks” but attempted front flip on trampoline anyway). As discussed supra, summary judgment based on assumption of risk is inappropriate where there is a question as to appreciation or understanding of risk. 10 See Hedstrom, 76 F. Supp. 2d at 435-36 (recognizing no assumption of risk by beginning trampoline user who was unaware and not sufficiently warned of risks); Kroll, 764 N.Y.S.2d at 731 (deciding plaintiff did not assume risk because she was unaware of trampoline’s defect). Application of assumption of risk at summary judgment is especially inappropriate here because New York law disfavors using the  [*23] doctrine in cases where there are allegations of reckless or intentional conduct, or concealed or unreasonably increased risks. 11 Morgan, 90 N.Y.2d at 485; see, e.g., Charles v. Uniondale Sch. Dist. Bd. of Educ., 91 A.D.3d 805, 937 N.Y.S.2d 275, 276-77 (N.Y. App. Div. 2012) (denying summary judgment where issues of fact existed as to whether defendant unreasonably increased risk by failing to provide head and face protection to plaintiff lacrosse player); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 925 N.Y.S.2d 785, 788 (N.Y. App. Div. 2011) (rejecting summary judgment because plaintiff submitted evidence that defendant’s negligent failure to stop ski lift caused plaintiff’s injuries); Repka, 798 N.Y.S.2d at 632-33 (dismissing summary judgment motion because lack of adequate warnings may have unduly enhanced snowmobile’s concealed defect). In short, I do not find that Cornell is entitled to judgment as a matter of law based on the assumption of risk doctrine.

10 Cornell argues that the warning notice on the TTA itself establishes total assumption of risk. However, a vast portion of the evidence in this case (almost all of it disputed) is about whether the TTA’s warnings were seen, sufficient, or effective. In  [*24] other words, Cornell relies on a highly disputed factual conclusion concerning the adequacy of the warning to justify summary judgment on assumption of risk grounds. This Court cannot follow.

11 I am completely unpersuaded by Cornell’s argument concerning its total lack of a duty of care to a novice student using equipment in the Teagle Gymnasium. N.Y. Gen. Oblig. Law § 5-326 (McKinney 1976) (voiding gymnasium waivers); Eddy v. Syracuse Univ., 78 A.D.2d 989, 433 N.Y.S.2d 923 (App. Div. 1980) (concluding questions of negligence, foreseeability of injury, and duty to protect gym users are all proper issues for a jury); Lorenzo v. Monroe Comm. Coll., 72 A.D.2d 945, 422 N.Y.S.2d 230 (1979) (finding questions of fact existed as to whether defendant provided adequate supervision in gymnasium). Much of Cornell’s arguments are bootstrapped onto a conclusion of assumption of risk — i.e., because a student assumed the risk, the defendant college owes no duty with respect to the dangers inherent in the activity. As discussed, this Court cannot conclude at this stage that there was any assumption of risk. In addition, this Court will not revisit its previous rulings as to the issue of the prior academic year waiver despite Cornell’s  [*25] apparent invitation.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). 12 Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

12 Cornell spends considerable time “debunking” these experts in briefs, often by reference to the testimony of others. By doing so, Cornell highlights some of the very disputes that preclude summary judgment.

Conclusion

Tumbl Trak maintains that Plaintiff cannot prove it inadequately warned him against use of its product.  [*26] Cornell suggests that this case involves nothing more than a “luckless accident” that resulted from Plaintiff’s voluntary participation in vigorous athletic activity. Plaintiff disagrees. He believes that he was harmed by (1) a device with grossly inadequate warnings, and (2) an institution which engaged in a course of conduct of gymnasium operation and supervision which was reprehensible and reckless. Based on the record before me, Plaintiff is entitled to put these questions to a jury.

An appropriate Order follows.

ORDER

AND NOW, this 31st day of July, 2012, it is hereby ORDERED that:

  1. Defendant Tumbl Trak’s Motion for Partial Summary Judgment (Docket No. 169) is DENIED.
  2. Cornell University’s Motion for Summary Judgment (Docket No. 171) is DENIED.
  3. Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172) is DENIED.
  4. The Case Management Order dated April 20, 2012 remains in force.

In addition, this Court has briefly reviewed the initial pre-trial filings in this matter and noticed that they do not conform with the Chambers Policies and Procedures, available at http://www.paed.uscourts.gov. The rules contained therein are not optional, and are to be followed  [*27] to the letter. No party has ever represented to this Court that they cannot work with their colleagues to fulfill their responsibilities under these procedures. Here, it appears the parties have, at least, failed to properly prepare their joint proposed jury instructions and joint proposed voir dire. Instead, three different versions of each document were separately filed by three different parties — a situation that the Chambers Policies obviously sought to preclude. The parties are specifically directed to review the Chambers Policies and Procedures, Civil Cases, Subsection E, which provide two pages of instructions as to the proper preparation and presentation of these and other pre-trial submissions. 13 It is ORDERED that the parties promptly withdraw any non-conforming filings and submit appropriately-prepared ones by August 31, 2012.

13 Parties are expected to be familiar with all Policies and Procedures by the time of the final pre-trial conference, especially the items concerning exhibits, courtroom operation, and attorney conduct during a trial.

BY THE COURT:

/s/ C. Darnell Jones, II

  1. DARNELL JONES, II, U.S.D.J.

 


Strawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

Strawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

Vincent F. Strawbridge, Jr.; Rebecca S. Strawbridge, Plaintiffs – Appellants, versus Sugar Mountain Resort, Incorporated; B. Dale Stancil, individually; The Sugar Mountain Irrevocable Trust; The B. Dale Stancil Irrevocable Trust, Defendants – Appellees.

No. 04-2250, No. 04-2331

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

September 19, 2005, Argued

October 28, 2005, Decided

COUNSEL: ARGUED: R. Hayes Hofler, III, HAYES HOFLER & ASSOCIATES, P.A., Durham, North Carolina, for Appellants/Cross-Appellees.

Wyatt Shorter Stevens, ROBERTS & STEVENS, P.A., Asheville, North Carolina; James Robert Fox, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellees/Cross-Appellants.

ON BRIEF: Daniel B. Hill, HAYES HOFLER & ASSOCIATES, P.A., Durham, North Carolina, for Appellants/Cross-Appellees.

Jennifer I. Oakes, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellees/Cross-Appellants B. Dale Stancil, The Sugar Mountain Irrevocable Trust, The B. Dale Stancil Irrevocable Trust.

JUDGES: Before WILLIAMS and MICHAEL, Circuit Judges, and James C. DEVER, III, United States District Judge for the Eastern District of North Carolina, sitting by designation.

OPINION

[*287] PER CURIAM:

This is an appeal from a defense verdict [**2] in a case brought by Vincent and Rebecca [*288] Strawbridge against Sugar Mountain Resort, Inc. (SMR), its alleged alter-ego, B. Dale Stancil, and two trusts created by Stancil. (We will refer to the defendants as SMR and Stancil.) Mr. Strawbridge was injured in a skiing accident at the SMR resort. The Strawbridges contend that the district court erred in refusing to allow them additional voir dire or grant a new trial after the defense’s voir dire allegedly revealed that two jurors had failed to respond to an important question posed by the Strawbridges during their voir dire. The Strawbridges also claim that the district court erred in excluding evidence about rocks at the site of Mr. Strawbridge’s accident. Alternatively, the Strawbridges argue that the district court abused its discretion in refusing to enforce a settlement agreement allegedly reached before trial. Finding no error, we affirm.

I.

The Strawbridges allege that on January 22, 1998, Mr. Strawbridge skied over a ledge at SMR’s resort, where he hit a bare spot of dirt, lost control, and fell. Mr. Strawbridge sustained serious physical injuries. In their complaint, filed April 22, 2002, the Strawbridges asserted claims [**3] of negligence and loss of consortium and sought both compensatory and punitive damages. Stancil was named as a defendant on the theory that SMR was his alter ego. Stancil’s presence as a defendant was of moment because SMR carried only $1 million in liability insurance.

SMR and Stancil filed motions for summary judgment on December 1, 2003, and the motions were referred to the magistrate judge. The magistrate judge held a hearing on these motions on February 4, 2004, and two days later, on February 6, filed a memorandum recommending the award of summary judgment to the defendants on all claims. After considering the magistrate judge’s recommendation de novo, the district judge granted summary judgment to SMR on the Strawbridges’ request for punitive damages, but otherwise denied the summary judgment motions. Strawbridge v. Sugar Mountain Resort, 320 F. Supp. 2d 425 (W.D.N.C. 2004).

In the meantime the parties had been involved in settlement negotiations. Prior to the February 4, 2004, summary judgment hearing, the Strawbridges demanded $8 million to settle their claims. Wyatt Stevens, the lawyer for SMR’s insurer, made a $450,000 counteroffer, which the Strawbridges [**4] rejected. Shortly after the February 4 hearing, a lawyer retained directly by SMR, Robert Riddle, asked the Strawbridges to reconsider settlement.

The parties dispute the facts concerning subsequent settlement negotiations. According to the Strawbridges’ lawyer, Hayes Hofler, at approximately 11: 00 a. m. on February 6, 2004, Riddle made an offer to settle for the policy limits of $1 million, and Hofler accepted on behalf of the Strawbridges. The Strawbridges allege that, after accepting, Hofler asked Riddle if the payment could be structured as loss of future income in an effort to avoid a $400,000 lien arising from Mr. Strawbridge’s medical bills. The Strawbridges claim that Riddle responded that he thought that approach would not be a problem and that he would discuss it with Stevens. SMR disputes this account. It claims that Hofler indicated that his clients (the Strawbridges) would accept the policy limits of $1 million on the condition that payment be structured as loss of future income. SMR insists that because it never accepted this condition, the parties never reached a settlement agreement.

In any event, later in the day of February 6, before Stevens responded to Riddle [**5] about payment structuring, Stevens learned that the magistrate judge recommended [*289] dismissal of the case. Shortly thereafter, Stevens contacted Riddle and told him that a $1 million settlement, with the structuring condition, was unacceptable. Around 5:00 p.m. Hofler (on behalf of the Strawbridges) left a telephone message for Stevens in an effort to confirm settlement. Stevens returned Hofler’s call around 5:30 and told him that Riddle did not have authority to settle the case in light of the Strawbridges’ request to structure payment.

In March 2004 the Strawbridges, claiming that a settlement agreement had been reached, filed a motion to enforce it, and the district court held a hearing. After considering the lawyers’ oral representations, their affidavits, and transcripts of some of the telephone calls at issue, the court found that no settlement had been reached because the parties never agreed to all material terms of settlement.

The case proceeded to trial on July 12, 2004. During voir dire the judge asked the jury panel some preliminary questions related to possible bias, including: “Do[any] of you have any prejudices or biases that you know of that would affect your ability [**6] to sit in a case of this kind involving a ski incident, just simply by the reason of the nature of the sport or exercise, whatever you wish to call it?” J.A. 1131. There was no affirmative response. Later, the Strawbridges’ lawyer asked the panel:

Do any of you have anybody, family, close family, relatives, children, who is in any way involved in the ski industry, not necessarily on the slopes themselves, but maybe providing supplies to a resort or making deliveries to a resort or going there to make repairs, that kind of thing, in any way that might be remotely connected with the ski industry?

J.A. 1144. There was no response. The Strawbridges passed on the panel, and the defense side began its questioning. Defense counsel asked whether any of the jurors knew anyone closely connected with the ski industry. Juror Nicholson responded that the president of the company for which he worked was a volunteer ski patroller who might have worked for SMR. Juror McDonald reported that the son of one of her best friends owns a local ski shop. When defense counsel passed on the panel, the Strawbridges requested that voir dire be reopened to allow them to inquire of jurors Nicholson [**7] and McDonald. This request was denied. At the close of evidence the Strawbridges moved to strike jurors Nicholson and McDonald, and this motion was denied. The jury returned a verdict for the defendants on the seventh day of trial, and the district court later denied the Strawbridges’ motion for a new trial that was based on the claim of inadequate voir dire and juror bias.

The Strawbridges appeal the adverse rulings discussed above. SMR cross-appeals the district court’s refusal to give a jury instruction on assumption of risk, and Stancil cross-appeals the court’s denial of his motion for summary judgment on the alterego issue.

II.

A.

The Strawbridges contend that the district court erred in refusing to reopen voir dire. They insist that the failure of the two jurors (Nicholson and McDonald) to provide pertinent information in response to their question about ties to the ski industry prevented them from intelligently exercising their peremptory challenges. We conclude that the district court did not err in refusing to reopen voir dire. [HN1] A trial judge has broad discretion in overseeing the conduct of voir dire, subject to “essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, [*290] 51 S. Ct. 470, 75 L. Ed. 1054 (1931); [**8] United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir. 1977). Trial judges “must reach conclusions as to [a prospective juror’s] impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981). An “appellate court [cannot] easily second-guess the conclusions of [a trial judge] who heard and observed” a juror’s responses and demeanor during voir dire. Id.

In the present case, the trial judge asked his own preliminary questions on voir dire that were aimed at uncovering any bias or prejudice relating to the sport of skiing. There was no response that raised a red flag. In addition, the judge observed the responses and demeanor of the two jurors in question. The judge declined to reopen voir dire, reasoning that both sides had been given adequate opportunity to question jurors, and all jurors seated assured the judge that they could be fair and impartial. The judge was satisfied that “had there been some bias or prejudice that would affect [the jurors’] verdict . . . it would have been uncovered” during voir dire. [**9] J.A. 1194. The trial judge thus determined that the voir dire was adequate on matters of potential bias. We have ample grounds for deferring to this determination, and we conclude that the judge did not err in refusing to reopen voir dire.

B.

The Strawbridges also contend that they are entitled to a new trial because the two jurors (Nicholson and McDonald) failed to provide honest responses at voir dire. [HN2] A new trial is warranted when (1) a juror failed to answer a material question honestly on voir dire, even if the failure was innocent, and (2) a correct response would have provided a basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). The question the Strawbridges posed to the panel was:

Do any of you have anybody, family, close family, relatives, children, who is in any way involved in the ski industry, not necessarily on the slopes themselves, but maybe providing supplies to a resort or making deliveries to a resort or going there to make repairs, that kind of thing, in any way that might be remotely connected with the ski industry?

J.A. 1144. The Strawbridges maintain that [**10] because the question contained the word “anybody,” the two jurors were dishonest when they did not respond with information about non-familial ties to the ski industry.

A new trial is not warranted because, as the district judge found, the jurors did not respond dishonestly to the Strawbridges’ question. According to the trial judge, the most logical interpretation of the question is that it was limited to potential jurors’ family ties to the ski industry. This interpretation led the judge to conclude that the jurors’ responses were neither inconsistent nor dishonest. We agree with the judge’s analysis. The Strawbridges’ inability to obtain the information they sought during voir dire is attributable to their failure to state their question clearly, not the jurors’ failure to answer the question honestly.

C.

The Strawbridges further argue that they are entitled to a new trial based on the actual bias of jurors Nicholson and McDonald or the trial court’s error in denying a hearing (including further questioning) on the issue of actual bias. [HN3] A showing that a juror was actually biased, regardless of whether the juror was truthful [*291] or deceitful, can entitle a party to a new trial. [**11] Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). A trial court has broad discretion to determine whether to order a hearing on a claim of juror bias. See McDonough, 464 U.S. at 556 (Blackmun, J., concurring); Fitzgerald v. Greene, 150 F.3d 357, 363 (4th Cir. 1998).

The Strawbridges have simply made no showing that either Nicholson or McDonald was a biased juror. Moreover, we have reviewed the record and conclude that the trial court did not abuse its discretion in declining to hold a hearing or permit further questioning on the issue of actual bias.

III.

The Strawbridges argue that the trial court erroneously excluded evidence showing that rocks existed on the area of the slope where Mr. Strawbridge fell. Because Mr. Strawbridge testified that he encountered a bare spot of dirt (he did not mention rocks), the court did not err in excluding evidence of rocks on the basis that it was not relevant under Federal Rules of Evidence 401 and 402.

IV.

The Strawbridges argue that the district court abused its discretion in refusing to enforce a settlement [**12] agreement they allegedly reached with SMR. [HN4] A court should enforce a settlement agreement when the partes have agreed on all material terms. Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1083 (4th Cir. 1987); Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692, 695 (N.C. 1974). After holding a hearing on the settlement question and carefully reviewing the facts, the district court found that there was no meeting of the minds. Riddle, SMR’s lawyer, considered the deal to be conditioned upon the Strawbridges’ requirement that payment be structured as loss of future income. The Strawbridges argue that the court should enforce the agreement because payment structure was not a material condition. However, as the district court found, payment structure was material because the defense side feared exposure to liability on Mr. Strawbridge’s medical liens. The district court did not abuse its discretion in refusing to enforce the alleged settlement agreement.

V.

Because our rulings on the voir dire, jury bias, evidentiary, and settlement issues mean that the jury’s finding of no liability on the part of the defendants will stand, we have no reason to [**13] reach the Strawbridges’ argument that the district court erred in granting summary judgment to SMR on the issue of punitive damages. Likewise, because the judgment for the defendants will be affirmed, we will not consider the issues raised in the defendants’ cross-appeals. The judgment is affirmed.

AFFIRMED


When is a case settled? When all parties (and maybe their attorneys) agree it is settled

Skier sued ski resort for injuries received skiing into bald spot. Skier argued they had agreed on a settlement before trial, which only became an issue after the plaintiff lost at trial.

Strawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

State: North Carolina, United States Court of Appeals for the Fourth Circuit

Plaintiff: Vincent F. Strawbridge, Jr.; Rebecca S. Strawbridge

Defendant: Sugar Mountain Resort, Incorporated; B. Dale Stancil, individually; The Sugar Mountain Irrevocable Trust; The B. Dale Stancil Irrevocable Trust,

Plaintiff Claims: negligence, loss of consortium and requested compensatory and punitive damages

Defendant Defenses: not stated

Holding: for the defendant

Year: 2005

This case is difficult to understand the facts of what happened and what the claims or defenses are. The 4th Circuit Court of Appeals was succinct in its opinion and reasoning for its opinion.

The plaintiff was skiing at the defendant Sugar Mountain Resort when he skied over a ledge into a bar spot where he fell. The plaintiff’s (husband and wife) sued for $8 million. They sued the ski area, and they sued the owner of the ski area because the ski area only had $1 million in liability insurance.

At one point before trial and before and after the magistrates ruling the parties were close to a settlement agreement. The settlement the defendant had offered was $450,000 and the plaintiff had counter offered $1 million. The plaintiff was trying to avoid the subrogation claims of his insurance companies, which amounted to $400,000. So one of the issues negotiated was how the money was to be paid, as damages or as lost future income. Damages would be subject to subrogation claims.

However, no agreement was reached; no settlement was signed, and no money exchanged hands between the parties. The magistrate held a hearing on the issue and held that no settlement had occurred because there had not been an agreement to the material terms of the agreement. Both parties to a contract must understand and agree to the major terms of a contract for a contract to be valid, and a settlement agreement is a contract.

The magistrate ruled that the defendant should win its motion for summary judgement. The federal district court ruled that only the plaintiff’s claim for punitive damages should be dismissed, and the rest should go to trial.

A trial occurred which the defendant won. The plaintiff appealed whether or not a settlement had occurred and issues pertaining to jury selection. The defendant appealed the issue of why assumption of the risks was not allowed as a defense.

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

The majority of the agreement looks at the issues on how the jury was selected and is not important here. The court also said that evidence of rocks in the bare spot was not admitted. However, the court found that since the plaintiff did not mention rocks in his testimony, only a bare spot, then the denial of the admittance of the evidence of rocks was correct.

The next issue was whether there was a settlement between the parties. The district court had also held a hearing on the issue of whether the parties had settlement and held that there was no meeting of the minds.

The final issue the court reviewed was the settlement agreement, which the appellate court agreed with the lower court and ruled there was no meeting of the minds. The way the money was to be paid was a material factor in the agreement which was not agreed upon by the parties so the parties did not have a contract.

So Now What?

To sue the owner of the ski area you would have to breach the corporate veil. That means you would have to find a reason to prove the corporation was a sham. Normally, that is something like using the corporation personally, not maintaining corporate records or not running the corporation properly. The most-used way to pierce the corporate veil is to prove a corporation was used for fraudulent purposes. One way to pierce the corporate veil that is rarely, if ever used, is because the corporation is underfunded.

Here it is not explained what theory the plaintiff was relying upon to sue the owner individually. However, the fact that a large corporation only had $1 million in liability insurance could fall both as running a corporation without enough money or running it improperly. More than anything, it is just stupid.  

Until any agreement is finalized, proving a settlement with some way to prove the terms, and the agreement to the terms, is difficult. Once you agree, do not relax until all parties and the parties’ attorneys have signed the settlement agreement, and the judge has dismissed the case.

What do you think? Leave a comment.

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

 


Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993); and,

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

Hawaii Revised Statutes, Section 663-1.54

Badly written statute which was already full of holes was turned absolutely worthless by Hawaiian Federal District Court Decision. You cannot give up the best defense you have when you try and gain more defenses.

In Wheelock vs. Sport Kites

Plaintiff: Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors

Defendant: Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation

Plaintiff Claims: Negligence, Gross Negligence and Product Liability

Defendant Defenses: Release

Holding: Holding for the Defendant on the Negligence claim and for the Plaintiff on the Gross Negligence and Product Liability claims.

In King v. CJM Country Stables

Plaintiff: John King and Patricia King

Defendant: CJM Country Stables

Plaintiff’s Claims: Negligence, Negligence Per Se, Strict Liability, Intentional, Negligent Infliction of Emotional Distress Loss of Consortium, Punitive Damages, Respondeat Superior

Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute

Holding: For the Plaintiff

Tourists are the life blood of the outdoor recreation industry. No place does that ring any truer than Hawaii. Without tourists who are there for a vacation or as a stop on a cruise ship, Hawaii’s economy would grind to a stop.

In an effort to limit liability for outdoor recreation activities, the recreation providers passed a law attempting to reduce or prevent lawsuits for injuries tourists received recreating.  However, this Hawaiian law backfired by eliminating the use of releases a defense against a claim in the statute.

To set the stage for Hawaii’s move towards recreation legislation, it is important to acknowledge the development of Hawaiian common law.  The landmark case, Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993), was the first time the Hawaiian courts dealt with whether an express release of liability bars all claims of negligence.  Wheelock plunged to his death while paragliding when all the lines connecting the canopy to his harness broke.  Wheelock’s wife sued, even though her husband signed a waiver releasing Sport Kites.  The court upheld the release for negligence, declaring that Wheelock assumed the risk of paragliding.

The court did not allow the release to bar claims for gross negligence and the product liability claim.

Despite the Wheelock decision, the statewide Activity Owners Association of Hawaii believed litigation over recreation accidents needed to be reduced. The belief was it would lower insurance premiums and promote business growth. (See Ammie Roseman-Orr, Recreational Activity Liability in Hawai’i: Are Waiver Worth the Paper on Which They Are Written?, 21 U. Haw. L. Rev. 715.) Without a law, every accident had the opportunity to test the waters of the legal system in hopes of a reward.  The Recreational Activity Liability Statute was enacted in 1997 to reduce recreation accident litigation’

§ 663-1.54.  Recreational activity liability.

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

This statute superseded the common law, which developed through Wheelock and the cases preceding it.

The first case to review the statute was King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511. In this case, the plaintiff was on a seven-day cruise that left Vancouver and went to Hawaii. While in Hawaii, the plaintiff booked a horseback ride through the cruise, with the defendant stable. While riding, the plaintiff was bit by another rider’s horse. She sued.

The court immediately reviewed the above Hawaiian Recreational Activity Liability Statute. Reading the statute the court concluded:

…these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries.

The court looked at the language of the release which states the trier of fact must determine if the injuries were caused by the activity, or in this case, the horse. The court found that under the statute, the court could not support the defendant’s motion for summary judgment because the statute “…explicitly precludes waiving liability for negligence.”

Since there was a genuine issue of material fact, meaning there were facts important to the case that had two different versions or interpretations (duh!) then the jury had to decide the case no matter what. The statute placed a burden on the plaintiff that was greater than the normal burden of proof, however the decision placed a greater burden on defendants in the increased cost of litigating cases.

…whether Defendant was negligent; and the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

So?

The statute left an enormous hole that will allow every injured party to recover something. The statute states that an “inherent risk” must be determined by the trier of fact, and that negligence cannot be an inherent risk. Consequently, the statute is worthless.

It gets worse. Under the previous common law, the judge could determine the inherent risk and grant summary judgment. In the case of Wheelock, the judge determined that, as a matter of law, equipment failure is an obvious risk of paragliding and set this as a precedent for future paragliding cases.  The recreation statute, on the contrary, declares that the trier of fact must determine the inherent risks of the activity. The trier of fact is the jury. Therefore, every claim will go to trial. That increases the cost and increases the chance that a settlement will occur to reduce the cost of litigation.

Summary judgment cannot be granted because a jury trial must be held to determine if the risk is inherent.  The cost of litigating jury trials will be substantially higher than the cost of a motion for summary judgment.  A precedent cannot be set because it is determined, as a matter of fact, so the inherent risks must be determined in every case.

Even cases with identical inherent risks and injuries must be brought before a trier of fact, with the possibility for differing results.  Second, the statute explicitly states that providers will be liable for negligence.  Wheelock previously determined negligence could be an inherent risk that customers assumed when they signed the waiver for, thereby releasing the provider from liability.  The statute no longer allowed the customer to assume the risk of negligence, making the statute a major step backward for activity providers.

So Now What?

Although a good effort by the Activity Owners Association of Hawaiian, they probably wrote the legislation without help from attorneys or those knowledgeable in how the statute would be applied (someone who had been in a courtroom with a suit and briefcase).

The statute is great in its intent; the actual way it was written makes the statute the best thing that could happen for any injured person in Hawaii. No matter what, this statute is going to allow the plaintiff to recover because the cost of fighting every claim through trial is at least $50,000 or more. Consequently, it will always be cheaper to settle than to sue.

What do you think? Leave a comment.

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BSA Summer Camp was able to have punitive damages claim dismissed prior to trial

Plaintiff’s complaint was not sufficient to adequately plead its claim for punitive damages.

N.H., a minor child, v. N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)

Plaintiff: N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually

Defendant: Sequoyah Council, Inc., Boy Scouts of America

Plaintiff Claims: (1) it [defendant] failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners

Defendant Defenses: Unknown

Holding: Motion to dismiss punitive damages claim by defendant granted for defendant

 

This is a pre-trial decision and should not be relied upon for a firm statement about the law in Tennessee as far as dismissing claims prior to trial.

The plaintiff was a boy who went to a Boy Scout Summer Camp in Tennessee. While mountain biking at the camp his brakes allegedly did not work, and he rode off the trail and hit a tree.

The plaintiff sued for a multitude of claims, including an allegation that punitive damages were being requested. The defendant filed this motion prior to trial to eliminate the claim for punitive damages.

Summary of the case

The court looked at Tennessee’s law concerning punitive damages. Under Tennessee’s law, punitive damages are only available for “only the most egregious of wrongs.” “Accordingly, under Tennessee’s law, “a court may … award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.”

Punitive damages are not available for gross negligence. To receive punitive damages under Tennessee’s law:

A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.

In this case, the complaint did not make any allegations that fit within the required definitions. Consequently, the part of the complaint demanding punitive damages was dismissed.

So Now What?

This was a pre-trial motion that was of interest; however, this is not a final decision in the case and could be overturned by another court after the trial on this case.

Tennessee has higher requirements for most other states to ask for and receive punitive damages. Consequently, the defendant was able to dismiss that part of the complaint in advance of trial.

It never hurts to know the specifics of what is required to prove damages above normal damages. That knowledge can help keep you safe.

What do you think? Leave a comment.

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Plaintiff uses standards of ACCT to cost defendant $4.7 million

Judgment included $1,110,000 in punitive damages, which is not covered by insurance and not dischargeable in bankruptcy.

Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171

Plaintiff: Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter,

Defendant: Alpine Towers International, Inc., and Ashley Sexton

Plaintiff Claims: strict liability, negligent design, and negligent training

Defendant Defenses: (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill.

Holding: for the plaintiff’s in the amount of $3,400,500.00 actual damages and $1,110,000.00 in punitive damages.

This is the appeal that I first reported at “$4.7 million-dollar verdict in climbing wall case against Alpine Towers in South Carolina Court” The plaintiff at the time of his injury was a 17-year-old student who after falling 20’ was rendered a paraplegic.

This is sad, tragic, and honestly, a disaster of a case for both the defendant and the plaintiff. Worse, this case will have far-reaching effects into the climbing wall and ropes’ course industry. It probably won’t have any effect on those association’s writing standards; however, here again, this case is proof that writing standards by an association creates the cause of action needed by the plaintiff to win and in this case, win big.

The facts of the case are convoluted and made so not by what happened, but by the contracts created by the defendant.

The defendant built an Alpine Tower and sold it to an amusement park, Carowinds. The owner, Fort Mill purchased the Alpine Tower from Carowinds. Fort Mill (former defendant who probably settled out of the case) hired the defendant Alpine Towers International “to move it, install it, and train Fort Mill’s faculty to use it safely.” The term “it” in the sentence means the alpine tower. The contract to provide those services was probably the normal contract used when selling a tower by the defendant because it referred to Alpine Towers as the “Seller.” This came back to haunt the defendant because a seller has a greater degree of liability than just a mover. The agreement stated the seller would do much more than just move the tower.

The plaintiff was climbing the tower with another student belaying him. The belay rope became stuck in the belay device. The instructor was close by, and the student attempted to un-stick the rope herself. In doing so the belayer lost control of the rope, and the climber/plaintiff fell to the ground breaking his back. The plaintiff was rendered a paraplegic by the fall.

The plaintiff sued based on three causes of action.

(1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay system.

The jury found for the plaintiff and his parents on all causes of action and awarded the plaintiff damages.

It awarded $500.00 for strict liability, $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.

Summary of the case

The defendant appealed only the injured plaintiff’s claims and judgment, not the plaintiff’s parent’s claims. The defendant lost all of its arguments on appeal.

The first issue and the third most aggravating issue in this decision was how the court accepted the jury’s decision on the strict liability theory claim. The plaintiff’s experts argued that the belay device being used on the tower was operated manually and if the defendant has supplied automatic devices the fall would not have occurred.

…Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri.

“Absence of human error” is how all accidents occur.

Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably dangerous.

So by using a particular belay device, which was not part of the climbing wall, the defendant was strictly liable. The defendant was liable for the injury because the tower was “defective” based upon the choice of belay devices.

The next issue was the negligent design claim. Negligent design in South Carolina is a failure to exercise due care with the focus on the conduct of the seller or manufacturer. The proof the court accepted in this case was:

[Plaintiff] presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers.

Proof of the negligent design claim is knowing you have a problem that injures people and failing to do anything about it. The study was the proof of the knowledge, and the plaintiff’s injury was proof of failing to do anything about the problem.

Granted, it seems to be a stretch to apply design to belayers dropping climbers; however, if you look at the structure as including the ropes and belay devices, then the claim makes more sense.

The negligent training claims the final claim and the one that will create the most problems for other people within the industry. The contract signed by the defendant for moving the tower stated that defendant would teach the owner how to use the tower. The purchaser, Fort Mill, intended to use it to teach climbing and belaying. The defendant had manuals, curriculums and classes in how to belay; however, it did not teach the owner how to teach how to belay.

First, Alpine Towers uses a written syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to [defendant’s employee’s] testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.”

However, it gets worse. The plaintiff’s expert testified that no one should belay until they have been tested.

Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. [Plaintiff’s expert] testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.”

However, the statements of the plaintiff’s experts were reinforced by the trade association that the defendant belonged to and that his own employees served on.

Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which [defendant] called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.

Once again, the trade association (or as the defendant described it the “climbing society”) created standards which instead of helping the defendant win a trial, were used at trial to prove the defendant was negligent.

The final defense to the jury verdict raised by the defendant was Intervening Causation. Basically, this is an argument that something happened after the negligent acts of the defendant caused by a third party who either relieved the defendant of liability or is the real cause of the injury. If the intervening act was foreseeable, then it does not break the chain of liability between the parties. To be a defense, the intervening act must be the “bolt of lightning” without a thunderstorm, which came out of nowhere.

The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.”

The defendant argued that the actions of the belayer, a co-defendant and the Fort Mill’s actions were an intervening cause. However, in this case, the acts of the defendant were foreseeable. In fact, for the belayer dropping a climber, the defendant had a study which showed what would happen.

So Now What?

The list of errors here is massive. Those errors were magnified by the plaintiff’s experts and trade association to which it belonged.

Marketing makes promises that Risk Management (actually your insurance company in most cases) must pay for. Here the wrong agreement was used where too many promises were made that were not kept by the defendant. If you put it in writing, you better make sure you are doing it; you have to complete the terms of the contract.

Add to that the language of the agreement using the term seller. The defendant created greater liability for itself. A mover moves; a seller agrees to move, set up, and in this case train.

It appears the plaintiff hired better experts. The court quoted from two of the plaintiff’s experts liberally. The court did not make a single quote from the defendant’s experts, or even mention if the defendant had an expert witness.

The defendant did a ten-year study on how people were injured using its towers. As usual, with a study that is not thought-out or done so with legal help, even when there could be legal consequences. The study was used by the plaintiff and the court to prove how negligent the design of the tower was. The study showed that most people were injured by belayers that dropped the climbers. That is what happened in this case.

The defendants own study showed the event was foreseeable, and occurred frequently. That was all the proof the plaintiff needed. If you do a study about injuries, you better solve the problems the study identifies. You just can’t look at the study and say, wow, what a great study.

Remember the big maps in ski patrol headquarters at ski resorts. Patrols used to stick a push pin or mark on the map were accidents occurred. Those maps are no longer found at the headquarters because they were proof that the ski area knew that accidents occurred at the locations with lots of holes in the map. If the injured skier can show his injury occurred at a holey part of the map, winning became much easier.

The worst part of this case is not in how it affects the defendant. The worst part is how this is going to affect climbing walls and rope’s courses across the US.

·        Instructors are going to have to stand behind belayers.

·        Instructional manuals have to be written in conjunction with an attorney. In this case, valuable information was removed from the manual which the judge attributed to a cause leading to the accident.

·        Belay devices are going to be a nightmare. Do you use one that does not fail, but that humans fail to use properly or do you use a static device.

·        Before allowing anyone to belay anywhere in the future the belayer is going to have to be tested.

The coup d’état or fait accompli of the case was the judge accepted that the defendant, who had several employees serving on the ACCT standards committee, failed to meet the standards created by the ACCT. What standard? The standard created on how to teach and test belayers.

Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.

Then the defendants own instruction manual was quoted by the court as proof the defendant had not followed its own standards.

Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence; however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”

This is an appellate court decision; I searched but could not find out if this has been appealed to the South Carolina Supreme Court. Hopefully……

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

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

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Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171

Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171

Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter, Appellants/Respondents, v. Alpine Towers International, Inc., and Ashley Sexton, Defendants, Of Whom Alpine Towers International, Inc., is Respondent/Appellant.

Opinion No. 4995

COURT OF APPEALS OF SOUTH CAROLINA

399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171

December 6, 2011, Heard

June 27, 2012, Filed

SUBSEQUENT HISTORY: Rehearing denied by Keeter v. Alpine Towers Int’l, Inc., 2012 S.C. App. LEXIS 248 (S.C. Ct. App., July 31, 2012)

PRIOR HISTORY: [***1]

Appeal From York County. Appellate Case No. 2009-137246. John C. Hayes, III, Circuit Court Judge.

DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

COUNSEL: Richard A. Harpootlian and Graham L. Newman, both of Richard A. Harpootlian, P.A., of Columbia, for Appellants/Respondents.

Charles E. Carpenter, Jr., and Carmon V. Ganjehsani, of Carpenter Appeals & Trial Support, LLC, of Columbia, and Thomas C. Salane, of Turner, Padget, Graham & Laney, P.A., of Columbia, for Respondent/Appellant.

JUDGES: FEW, C.J. KONDUROS, J., concurs. THOMAS, J., concurring in a separate opinion.

OPINION BY: FEW

OPINION

[*184] [**893] FEW, C.J.: Lawrence “Larry” Keeter and his parents brought this action against Alpine Towers International, Inc., for strict liability, negligent design, and negligent training after Larry broke his back and became a paraplegic as a result of a fall to the ground from a climbing tower designed, manufactured, and installed by Alpine Towers. The jury awarded actual and punitive damages in favor of Larry and actual damages in favor of his parents for Larry’s medical bills. After both sides filed post-trial motions, the trial court entered separate judgments in favor of Larry and his parents. Alpine Towers appeals the trial court’s decision [***2] to deny its motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to actual and punitive damages, and its motion for a new trial due to an alleged error as to apportionment. Larry appeals the trial court’s ruling requiring him to elect between his three causes of action. We affirm the denial of Alpine Towers’ motions. However, we hold the trial court incorrectly interpreted the jury’s verdict and erred in requiring [*185] Larry to elect. We remand to the trial court with instructions to enter judgment in Larry’s favor against Alpine Towers in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. 1

1 The judgment in favor of Larry’s parents is not affected by this appeal.

I. Facts

On May 5, 2006, the senior students at Fort Mill High School (Fort Mill) participated in a spring fling recreational field day. During field day, Larry fell more than twenty feet from the climbing tower to the ground. When he hit the ground, Larry broke a vertebra and was rendered a permanent paraplegic. He was seventeen.

Alpine Towers originally sold the climbing tower to Carowinds amusement park near Charlotte, North Carolina. Fort Mill bought the tower from Carowinds [***3] in July 2004 and hired Alpine Towers to move it, install it, and train Fort Mill’s faculty to safely use it. Fort Mill’s contract with Alpine Towers identifies Alpine Towers as “seller” and provides: “Installation includes all hardware, materials, . . . labor, . . . design work, . . . and staff training.” The wooden climbing tower is fifty feet tall, has three sides, and is shaped liked an hourglass. The central safety feature of any climbing tower is the belay system. 2 Alpine Towers designed the belay system on this climbing tower to include four participants–the climber, a primary belayer, a back-up belayer, and a faculty supervisor. The system requires the climber to wear a harness, which is secured to a climbing rope. The rope passes through a pulley at the top of the tower and down to a belay device secured to the ground at the base of the tower. The rope is threaded through the belay device, which uses bends in the rope to create friction to control the speed at which the rope passes through the device. As the [**894] climber ascends, the belayer guides the rope through the belay device to keep the rope taut. If the climber falls from the tower while climbing, [*186] the belayer uses the friction [***4] the belay device creates on the rope to keep the rope from passing back through the device, and thus protects the climber from falling all the way to the ground.

2 Alpine Towers’ instruction manual defines “belay” as “the rope or technique . . . that is used to protect a climber from falling to the ground.” See also Merriam-Webster Collegiate Dictionary 111 (11th ed. 2004) (defining belay as “the securing of a person or a safety rope to an anchor point (as during mountain climbing)”).

After a successful climb, or in the event the climber falls before completing the climb, the belayer lowers the climber to the ground in a controlled fashion by guiding the rope back through the belay device. The friction created on the rope allows the belayer to control the speed of the climber’s descent. 3 Because of the hourglass shape of the tower, a climber being lowered to the ground by the belayer is suspended in air, away from the side of the tower.

3 Alpine Towers’ CEO explained that “not very much” strength is required to hold a climber in the air because the weight is transferred through the belay device to the rope attached to the ground, so that a lightweight belayer can easily lower even a heavy [***5] climber.

Ashley Sexton, a senior at Fort Mill, served as Larry’s primary belayer. Fort Mill trained Ashley to belay as a part of the Junior ROTC program. Larry had never been trained in belaying or climbing, but successfully climbed to the top of the tower. Ashley testified that while she was lowering Larry to the ground “the rope . . . got[] tight in the [belay device] almost as if it were stuck” and would not move. Neither Ashley nor anyone at Fort Mill had been taught what to do if the rope became stuck in the belay device. When Ashley tried to free the rope, she lost the assistance of the device, was unable to control the rope, and Larry fell more than twenty feet to the ground.

Alpine Towers designed the belay system on the climbing tower and trained Fort Mill’s faculty how to use it. Alpine Towers provided no notice or warning to Fort Mill’s faculty that the climbing rope could get stuck in the belay device it designed into the system. Alpine Towers also provided no training or instruction on how the belayer or faculty supervisor should handle the situation if it did. Alpine Towers chose not to incorporate into the design a readily available, automatically locking belay device [***6] Larry’s experts testified would have stopped Larry’s fall. Alpine Towers did not train Fort Mill’s faculty to require the faculty supervisor to stand directly beside the belayer, which Alpine Towers admitted at trial [*187] should always be done to ensure that proper procedures were followed in the climb and to assist the belayers in the event of a situation like the one that resulted in Larry’s fall. When Larry fell, no back-up belayer was present, and no faculty supervisor was close enough to assist Ashley.

II. Procedural History

All of Larry’s damages were caused by the broken back he suffered as a result of his fall. Larry asserted three causes of action presenting three alternative theories of Alpine Towers’ liability for those damages: (1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; 4 and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay [***7] system.

4 Because Alpine Towers did the “design work” for the installation of the tower at Fort Mill, Larry’s negligent design theory includes allegations of negligence in failing to design the tower to meet the specific safety needs of Fort Mill.

Larry also filed suit against Ashley for negligence. Larry’s parents filed suit against Alpine Towers and Ashley for Larry’s medical bills. Larry and his parents settled with Fort Mill before filing suit and dismissed Ashley as a defendant before trial. The jury returned a verdict for Larry on each cause of action. It awarded $500.00 for strict liability, 5 $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive [**895] damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.

5 The jury originally returned a verdict on the strict liability cause of action in favor of Larry, but with zero damages. After the trial court instructed the jury that it must either award damages to Larry or find in favor of Alpine Towers, it returned a $500.00 award.

[*188] Alpine [***8] Towers filed a post-trial motion seeking (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill, and (5) apportionment under the Contribution Among Joint Tortfeasors Act. The trial court denied the JNOV, new trial, and apportionment motions. The court required Larry to elect between his causes of action and ordered that the settlement from Fort Mill be set-off against Larry’s recovery from Alpine Towers. Larry also filed a post-trial motion asking the trial court to enter judgment in the cumulative amount of the damage awards rather than require him to elect. The court denied Larry’s motion and ordered that judgment be entered in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages on the negligent training cause of action.

III. Alpine Towers’ Appeal

A. Directed Verdict and JNOV–Actual Damages

[HN1] “In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the [***9] party opposing the motions.” McMillan v. Oconee Mem’l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). “When we review a trial judge’s . . . denial of a motion for directed verdict or JNOV, we reverse only when there is no evidence to support the ruling or when the ruling is governed by an error of law.” Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010).

In its motions for directed verdict and JNOV, Alpine Towers contested all liability issues, including the sufficiency of the evidence supporting each of Larry’s causes of action. In its Statement of Issues on Appeal, Alpine Towers contends only that the trial court should have granted its motions because the chain of causation was broken as a matter of law. Specifically, Alpine Towers contends the chain of causation was broken by (1) “the intervening and superseding negligent [*189] acts of Fort Mill High School and Ashley Sexton in failing to follow the warnings, directions, and instructions for proper use of the Tower” and (2) “the intervening and superseding negligent acts of Fort Mill High School in failing to undertake its independent duty to properly supervise its students.” However, because [***10] both Larry and Alpine Towers address in their briefs the sufficiency of the evidence supporting each of Larry’s causes of action, we do as well. We find ample evidence to support the jury’s verdict as to each. We also find ample evidence that Ashley’s negligence and any negligence by Fort Mill was foreseeable to Alpine Towers, and thus their negligence does not break the chain of causation from Alpine Towers’ tortious conduct.

1. Strict Liability

In his strict liability theory, Larry focused on Alpine Towers’ design of the climbing tower to incorporate a belay device called Trango Jaws. The Trango Jaws is operated manually and requires the belayer to properly position the climbing rope in the Trango Jaws to create the friction necessary to stop the rope and then control the rate of the climber’s descent. Larry’s expert witness in biomechanics and sports safety, Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri. 6

6 The GriGri costs approximately $75, and the Trango Jaws costs approximately $24. [***11] The CEO of Alpine Towers testified the difference in cost is an “inconsequential amount of money.”

The GriGri is a mechanical device that, when properly threaded, does not rely on the absence of human error. In the event the belayer loses control of the rope, the GriGri automatically stops the rope, and thus protects the climber from falling to the ground. Larry’s climbing wall safety expert, Dan Hague, testified that the GriGri “locks up automatically, . . . you’re not relying on the actions of the belayer to lock the device up.” [**896] He emphasized that the automatic stopping feature of the GriGri is particularly important when students are belaying climbers because of the heightened likelihood of human error. To account for this foreseeable risk, Hague “always uses the GriGri with kids.” In Hague’s opinion, “this injury would not have occurred had a GriGri [*190] been in use that day.” As a normal part of its business, Alpine Towers sells the GriGri for a variety of uses, including on its own climbing towers. Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably [***12] dangerous.

Alpine Towers’ argument that the evidence in support of Larry’s strict liability cause of action is insufficient is that there is no evidence the tower “was in a defective condition, unreasonably dangerous to the user . . . when it left the hands of the defendant.” See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct. App. 1995). However, the evidence discussed above amply supports the jury’s finding that it was. Moreover, the GriGri qualifies as a “reasonable alternative design” as required under Branham v. Ford Motor Co., 390 S.C. 203, 225, 701 S.E.2d 5, 16 (2010). The trial court correctly denied Alpine Towers’ directed verdict and JNOV motions as to strict liability.

2. Negligent Design

[HN2] “A negligence theory imposes the additional burden on a plaintiff ‘of demonstrating the defendant . . . failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault.'” Branham, 390 S.C. at 210, 701 S.E.2d at 9 (quoting Bragg, 319 S.C. at 539, 462 S.E.2d at 326). In his negligent design theory, Larry also relied on the evidence that Alpine Towers should [***13] have used the GriGri in designing a climbing tower to be used by students, particularly student belayers. However, in addition to evidence that the tower was defective and unreasonably dangerous without the GriGri, Larry presented evidence that Alpine Towers failed to exercise reasonable care in the design. Specifically, Larry presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers. Despite this knowledge, Alpine Towers chose not to design for human error by including a belay device that would automatically lock and prevent the rope from passing back through the [*191] device, thus preventing a fall to the ground such as the one Larry suffered.

Moreover, Larry’s experts testified to several breaches of Alpine Towers’ duty of reasonable care in designing the warnings and instructions on the tower. In particular, Larry’s experts testified faculty supervisors should be instructed to remain within reaching distance of active belay ropes. Alpine Towers’ employee John Mordhurst conceded this instruction was necessary. Mordhurst testified [***14] a faculty supervisor should be at each belay point, and “[t]hey should be . . . in a position to intervene to grab a rope, . . . so they should be right next to the belayers and belay monitors.” In the 1997 edition of Alpine Towers’ instruction manual for the climbing tower, the section entitled “The Belay System” includes this requirement: “[P]rograms should require staff to check the belayer’s and climber’s systems prior to climbing and lowering; . . . the staff member should stand directly beside the climber.” However, Alpine Towers omitted the statement containing this requirement from the 2004 edition of the instruction manual, the edition it provided to Fort Mill.

Additionally, Dr. George testified Alpine Towers should have placed end user warnings on the tower for someone like Larry, who climbed for the first time without any instruction, and Ashley, who never received an instruction manual. Dr. George explained this was necessary to ensure an inexperienced climber such as Larry will know the dangers of climbing and understand how the belay system is designed to work before deciding to begin a climb. This evidence amply supports the jury’s finding that Alpine Towers failed to [***15] exercise reasonable care in designing a defective and unreasonably dangerous climbing tower. Therefore, the trial court was correct to deny Alpine Towers’ motions as to negligent design.

[**897] 3. Negligent Training

In his negligent training theory, Larry presented evidence that despite knowing Fort Mill’s faculty would not be doing most of the belaying, but rather would be teaching students to belay, Alpine Towers did not instruct the faculty how to teach belaying. Larry proved several key facts in support of this claim. First, Alpine Towers uses a written [*192] syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to Mordhurst’s testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.” The obvious purpose of this requirement is to enable the supervisor to keep the students from making errors [***16] and, if they do, to prevent the tragic consequences Larry suffered. However, Larry presented evidence that Alpine Towers did not teach this to the faculty at Fort Mill. One member of Fort Mill’s faculty who attended the Alpine Towers course testified he did not recall being told that a faculty supervisor should stand beside the belayer. When asked why the requirement that “the staff member should stand directly beside the climber” in the 1997 instruction manual was not included in the 2004 edition, Lackey responded, “I’m not sure why it was taken out.”

Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. Hague testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.” He explained:

In a climbing setting you have to be able to assess whether or not the group as a whole is making progress. . . . Since we’re talking about life safety [***17] here and not about math, if someone is not learning at the same rate as the group, you can’t just move to the next topic. You have to slow down. You have to be able to address that one person until everybody’s caught up. In addition, at the end of the training, there needs to be some type of discrete competency test.

Alpine Towers has several employees who serve on the standards committee for the Association for Challenge [*193] Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested. 7

7 Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence, however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”

This evidence provides ample support for the jury’s finding that Alpine Towers [***18] was negligent in failing to properly train the Fort Mill faculty on how to safely use the tower, and thus the trial court properly denied Alpine Towers’ motions as to negligent training.

We affirm the trial court’s decision to deny Alpine Towers’ motions for directed verdict and JNOV as to the sufficiency of the evidence supporting all three of Larry’s causes of action.

4. Intervening Causation

[HN3] The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.” McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 [**898] (Ct. App. 2009) (internal quotation marks omitted). The trial court properly charged the jury as follows:

The chain of causation between a defendant’s negligence and the injury itself may be broken by the independent intervening acts or omissions of another person over whom the defendant had no control. In order to decide whether an intervening act breaks the chain of causation, [***19] you must determine whether the intervening act or omission was reasonably foreseeable by the defendant. If the intervening act or omission was a probable consequence of the defendant’s negligence, the defendant is responsible for the plaintiff’s [*194] injuries. If, however, you find that the intervening act or omission was not foreseeable, the defendant is not liable.

By finding in favor of Larry, the jury necessarily found the actions of Ashley and Fort Mill were foreseeable, and therefore the chain of causation was not broken to insulate Alpine Towers from liability. There is ample evidence to support this finding. See Cody P. v. Bank of Am., N.A., 395 S.C. 611, 621-22, 720 S.E.2d 473, 479 (Ct. App. 2011) (“Only in rare or exceptional cases may the question of proximate cause be decided as a matter of law. . . . If there may be a fair difference of opinion regarding whose act proximately caused the injury, then the question of proximate cause must be submitted to the jury.” (internal quotation marks and citations omitted)).

Larry presented evidence that Alpine Towers knew Fort Mill would be using high school students to belay climbers, that adolescents are more susceptible to belaying errors [***20] than adults, and that Alpine Towers conducted a study concluding human error is the most common cause of falls to the ground from climbing towers. Dr. George testified Alpine Towers “knew or should have known . . . of these risks.” He stated it was not merely foreseeable, but “almost predictable,” that high school students would not follow proper procedures for belaying climbers. Hague testified that he has trained “thousands and thousands” of people in belaying over fifteen years, including “many hundreds” of adolescents, he takes different approaches to training depending on the maturity level of the belaying student, adolescents “routinely do not” follow procedures, and Alpine Towers “could easily foresee that adolescents aren’t going to follow all the procedures.”

Therefore, the primary risk associated with the use of a climbing tower is that the belayer, back-up, or faculty supervisor might make an error belaying the climber. Each of Larry’s theories of recovery focused on the allegation that Alpine Towers failed to design for and train against human error in belaying and the supervision of students belaying. This is not a “rare or exceptional” case in which the issue of proximate [***21] cause may be decided as a matter of law. Alpine Towers’ argument that “the intervening and superseding negligent acts of Fort Mill High School and Ashley Sexton” broke the chain of causation fails because there is ample evidence in [*195] the record that precisely the same human error that resulted in Larry’s injury was not only foreseeable to Alpine Towers, but was actually foreseen. Accordingly, we find the trial court properly submitted the question of proximate cause to the jury, and we affirm its decision to deny Alpine Towers’ motions for directed verdict and JNOV as to intervening causation.

B. Directed Verdict and JNOV–Punitive Damages

Alpine Towers also argues the trial court erred in denying its directed verdict and JNOV motions as to punitive damages. We disagree.

[HN4] “When ruling on a directed verdict motion as to punitive damages, the circuit court must view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party.” Hollis v. Stonington Dev., LLC, 394 S.C. 383, 393-94, 714 S.E.2d 904, 909 (Ct. App. 2011) (internal quotation marks omitted). This court applies the same standard as the circuit court. 394 S.C. at 394, 714 S.E.2d at 910. [***22] “The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant’s behavior was reckless . . . .” Mishoe v. QHG of Lake City, Inc., 366 S.C. 195, 201, 621 S.E.2d 363, 366 (Ct. App. 2005). “Recklessness implies the doing of a negligent [**899] act knowingly; it is a conscious failure to exercise due care. If a person of ordinary reason and prudence would have been conscious of the probability of resulting injury, the law says the person is reckless . . . .” Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (internal citation and quotation marks omitted).

Larry made two separate claims for punitive damages against Alpine Towers: (1) for reckless behavior in its design of the climbing tower and (2) for reckless behavior in its failure to properly train the Fort Mill faculty on how to safely use the climbing tower. The jury awarded punitive damages on each claim, so we address each independently.

As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in designing the tower, Larry presented evidence that Alpine Towers knew the majority [*196] of accidents occurring on its [***23] climbing towers were caused by human error by belayers and back-up belayers. Mordhurst conceded that of the three options for a belay device in the design of a climbing tower, “the GriGri has [the] highest likelihood of arresting the fall” of a climber and thus protecting him from falling to the ground if the belayer loses control of the rope. Lackey testified the additional cost of a GriGri is “inconsequential.” Alpine Towers’ decision to design its climbing tower to incorporate the Trango Jaws instead of the GriGri under these circumstances is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless design to the jury. 392 S.C. at 287, 709 S.E.2d at 612.

As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in failing to properly train the Fort Mill faculty, in addition to the evidence discussed above, Alpine Towers knew Fort Mill would be using student belayers, whom Alpine Towers knew to be less attentive to following procedures and more susceptible to errors in belaying than adults. Nevertheless, [***24] Alpine Towers (1) chose not to train Fort Mill’s faculty to teach others, particularly students; (2) did not include in the training materials given to Fort Mill the syllabus Alpine Towers uses to teach belaying; (3) removed from its training manual the specific instruction for faculty supervisors to “stand directly behind the climber”; (4) did not teach Fort Mill to follow the industry practice of testing belayers on the basic skills of belaying before allowing them to belay climbers; and (5) did not inform Fort Mill it had the option of an automatically locking belay device such as the GriGri to compensate for the greater risk posed by the use of student belayers. This also is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless training to the jury. Id.

Accordingly, we affirm the trial court’s decision to deny Alpine Towers’ directed verdict and JNOV motions as to punitive damages.

[*197] C. Apportionment of Fort Mill’s Fault

Alpine Towers contends it is entitled to a new trial because the trial court did not allow the jury to [***25] consider the fault of Fort Mill when it apportioned fault under section 15-38-15 of the South Carolina Code (Supp. 2011). 8 However, our ruling affirming the jury’s award of punitive damages makes it unnecessary to address this issue as [HN5] the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.” § 15-38-15(F).

8 After the jury’s verdict as to liability, the trial court required it to apportion fault between Alpine Towers and Ashley. The jury determined that Ashley was 60% at fault and Alpine Towers was 40% at fault. The jury was not asked to consider the fault of Fort Mill.

IV. Larry’s Appeal

Larry appeals the trial court’s post-trial ruling entering judgment in his favor in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages. He contends the trial court erred in interpreting the verdicts as “three awards” and requiring him to elect which cause of action would be his remedy. We agree.

[HN6] “Election of remedies involves a choice between different forms of redress [**900] afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.” Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996). [***26] Larry asserted three causes of action, but sought only one remedy–damages–for only one injury–a broken back. When a plaintiff seeks only one remedy, there is nothing to elect. See Adams v. Grant, 292 S.C. 581, 586, 358 S.E.2d 142, 144 (Ct. App. 1986) (“Where a plaintiff presents two causes of action because he is uncertain of which he will be able to prove, but seeks a single recovery, he will not be required to elect.”).

The trial court in this case recognized that Larry’s three causes of action sought only one remedy. In its post-trial order, the court wrote:

Here, both products liability claims and the negligence claim represent three theories for recovery for the same injury and damages–personal injuries sustained by [Larry] in his [*198] fall. [Larry] had one fall and all his injury and damages flow therefrom regardless of the number of acts of omission or commission of [Alpine Towers].

Because Larry sought only one remedy, the doctrine of election of remedies does not apply. [HN7] “As its name states, the doctrine applies to the election of ‘remedies’ not the election of ‘verdicts.'” Austin, 387 S.C. at 57, 691 S.E.2d at 153 (defining a “‘remedy’ as ‘[t]he means by which . . . the violation [***27] of a right is . . . compensated.'” (quoting Black’s Law Dictionary 1163 (5th ed. 1979))).

This court addressed a similar situation in Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998). The plaintiff in Creach “bit down on a hard substance in a steak biscuit made by Sara Lee Corporation,” “experience[d] severe pain,” and had to undergo “extensive dental work.” 331 S.C. at 463, 502 S.E.2d at 923-24. She sued Sara Lee and others “alleging negligence, breach of warranty, and strict liability.” 331 S.C. at 463, 502 S.E.2d at 923. After a verdict for Creach on all three causes of action, Sara Lee asked the trial judge to require her to elect her remedy. The judge refused to do so, and this court affirmed, holding “while the complaint stated three different causes of action, only one recovery was sought and only one recovery was awarded. Under these circumstances, no election was required.” 331 S.C. at 464, 502 S.E.2d at 924 (citing Taylor, 324 S.C. at 218, 479 S.E.2d at 44-45). Creach supports our holding that because Larry sought one remedy for one injury, the trial court erred in requiring him to elect.

Nevertheless, the trial court and this court must ensure that Larry [***28] does not receive a double recovery. See Collins Music Co. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct. App. 1998) ( [HN8] “It is well settled in this state that there can be no double recovery for a single wrong and a plaintiff may recover his actual damages only once.” (internal quotation marks omitted)). The determination of whether a verdict grants a double recovery begins with the trial court’s responsibility to interpret the verdict in order to ascertain the jury’s intent. The trial court interpreted the jury’s verdict in this case to be “three awards,” and therefore “inconsistent” because [*199] it allowed Larry a double recovery. We find the trial court erred in its interpretation of the verdict.

The error arose from the verdict form. Because Larry asserted three causes of action, the trial court correctly fashioned the verdict form to require the jury to write its verdict for each cause of action. However, because Larry sought only one remedy–damages–and because the amount of those damages could not vary from one cause of action to another, the trial court should have required the jury to write one amount for Larry’s actual damages, and should not have permitted the jury to write [***29] a damages amount for each of the three causes of action. The use of the three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.

[HN9] To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings, focusing on the events and circumstances that reasonably indicate what the jury intended. See Durst v. S. Ry. Co., 161 S.C. 498, 506, 159 S.E. 844, 848 (1931) (stating “the construction of a verdict should, and can, depend upon, not only the language used by the jury, but other things occurring in the trial may be, and [**901] should be, properly regarded in determining what a jury intended to find”); Howard v. Kirton, 144 S.C. 89, 101, 142 S.E. 39, 43 (1928) (stating it is “the duty of the trial judge to decide what the verdict meant, and, in reaching his conclusion thereabout, it was his duty to take into consideration not only the language of the verdict, but all the matters that occurred in the course of the trial”); see also 75B Am. Jur. 2d Trial § 1545 (2007) (“In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with [***30] certainty what the jury intended, and, for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.”).

To correctly interpret the verdict in this case, the trial court was required to consider several indications of the jury’s intention as to damages. First, the court should have considered its own conclusion that Larry sought only one remedy–damages–and that all of his damages flowed from the broken back resulting from his fall from the tower. Thus, it was not [*200] possible for the damages to vary from one cause of action to another. Second, after the jury returned the verdicts, Larry made a motion asking the court to inquire of the jury whether it meant for the damages awarded to be cumulative. Alpine Towers did not object to the request. While the jury was still in the courtroom, the judge asked the forelady if the jury intended the verdicts to be cumulative.

The Court: . . . Before you leave, I’ve got one last question. On the three causes of action you have awarded different amounts of damages. . . . Was it the jury’s intention to award those cumulatively, that is they add up to [***31] [$3.4 million and $500.00] . . . or did you simply mean that the damages as to each cause of action were to be separate . . . .

Forelady: Ask me that again.

. . .

The Court: . . . You have ordered [$500.00] on one, [$900,000.00] on one, and [$2.5 million] on one. Is it the jury’s intention that those are to be added, that is cumulative, or is the jury’s intention that as to each cause of action that award applies only to that cause of action?

Forelady: It’s cumulative.

The Court: Okay. How about . . . as to the punitive, you had [$160,000.00] and [$950,000.00], which adds up . . . to [$1.1 million] [sic]. Is it the same for that also?

Forelady: It’s cumulative.

The trial court then asked each side separately if there was “anything else before the jury’s dismissed?” Both Larry and Alpine Towers answered that they had nothing further, and the trial court dismissed the jury. 9

9 The trial court found, and Alpine Towers argues on appeal, that Larry should have sought further inquiry into the jury’s intent and that his failure to do so forecloses his argument that the jury intended the verdicts to be cumulative. We disagree. Larry is the party who initially asked the court to inquire whether the [***32] jury intended the verdict to be cumulative. Larry’s counsel stated to the court “you can either inquire of the jury here in the courtroom or you can send them out, whatever you’re comfortable with.” Alpine Towers’ counsel stated, “I wouldn’t oppose that request.” The trial court then made the decision to ask only the forelady. The forelady’s answer, “It’s cumulative,” was the answer Larry was looking for, and therefore Larry had no reason to inquire further on that subject. Alpine Towers, who at that point did have reason to inquire further, said nothing. Therefore, to the extent the lack of further inquiry should be considered, we believe it should be held against Alpine Towers.

[*201] In the context that Larry sought, and could obtain, only one damages award for the same injury, this dialogue adequately demonstrates the jury intended the damage amounts written in the three blanks on the verdict form to be added together for a total award to Larry of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. However, there was more to indicate this was the jury’s intention. During deliberations the jury sent a note to the court stating the jurors were deadlocked as to whether to award [***33] $4.5 million or $5 million and asking for suggestions. The court responded that it had no suggestions. The total amount of damages awarded, including the amount awarded to Larry’s parents, was $4.75 million, 10 which is between the two amounts [**902] listed in the note. Further, the court should have considered that it gave the jury no basis on which to find different damage awards on different causes of action. In fact, the only place in the damages instruction where the court differentiated between the causes of action at all was to explain to the jury it may award punitive damages only on the negligence theories of recovery.

10 At the point of the trial when the jury sent this note, the court had not instructed the jury it must award damages on the strict liability claim or find for the defendant. Thus, the $500.00 damages awarded on that cause of action is not included in this figure.

This court has stated that [HN10] “it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.” Daves v. Cleary, 355 S.C. 216, 231, 584 S.E.2d 423, 430 (Ct. App. 2003). In fulfilling this duty, we may not substitute our judgment for that of the jury. See Lorick, 153 S.C. at 319, 150 S.E. at 792 [***34] (stating the court has a right to give “effect to what the jury unmistakably found” but cannot “invade the province of the jury”). The jury’s verdict in this case is readily reconciled as we have explained. We can discern no other way to interpret the verdict consistent with the applicable law and the facts of this case, nor can we find in the record any reason to believe this interpretation does not reflect the intent of the jury. Moreover, during arguments on post-trial motions, counsel for Alpine Towers explained to the trial court what he believed the jury did:

[*202] Let me tell you what I think happened. . . . [When they sent the note asking for suggestions,] they advised that they had arrived at a general block of the amount of the damages that they wanted to give to compensate Mr. Keeter. What they then did because the verdict form is listed in such a way that it says actual damages and punitive damages leaving both blank that they went through and parceled out the total amount of compensatory damages that they wanted to award . . . . And the damages for all three claims are identical . . . , there is no differentiation on the damages . . . . [T]hey arrived at a larger figure then [***35] they parceled it up to fill in the blanks. 11

Interpreting the verdict based on “all the matters that occurred in the course of the trial,” Howard, 144 S.C. at 101, 142 S.E. at 43, we disagree with the trial court and find the jury did not make an “inconsistent damages award.” See 75B Am. Jur. 2d Trial § 1556 (2007) (“In order for a verdict to be deemed inconsistent, there must be inconsistencies within each independent action rather than between verdicts in separate and distinct actions.”). Rather, we find that the jury intended the amounts to be added together for a total verdict in Larry’s favor of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. Accordingly, we hold the trial court erred in its interpretation of the verdicts and judgment should have been entered in the cumulative amount of actual and punitive damages the jury wrote on the verdict form for each of Larry’s causes of action.

11 In fairness to counsel, the statement was made as part of his argument that the verdicts were inconsistent. However, we believe the statement accurately explains why the jury put different damage amounts in different blanks.

V. Conclusion

For the reasons explained above, we affirm [***36] the trial court’s decision to deny Alpine Towers’ motions for directed verdict, JNOV, and for a new trial. We reverse the trial court’s interpretation of the jury verdict and remand with instructions that judgment be entered against Alpine Towers in favor of Larry Keeter in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages.

[*203] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

KONDUROS, J., concurs.

CONCUR BY: THOMAS

CONCUR

THOMAS, J., concurring in a separate opinion.

THOMAS, J.: I concur with the majority as to Alpine Towers’ appeal. As to Larry’s appeal, I concur in result. I agree that this case does not involve the need to elect remedies or an inconsistent verdict. I write separately to clarify that questioning the entire jury and then conforming the jury’s verdict to the jury’s intent are the best practices for ensuring a valid verdict.

[**903] First, when a party raises a question about the jury’s intent for the verdict, the best practice is to poll all of the jurors or allow the foreperson to answer the court’s questions after consulting with the entire jury. Lorick & Lowrance, Inc. v. Julius H. Walker Co., 153 S.C. 309, 314-15, 150 S.E. 789, 791 (1929). The need to clarify the jury’s [***37] intent almost invariably arises when the language used on the verdict form is problematic. Without an inquiry of the remaining jurors, questioning only the foreperson unnecessarily risks that the jury’s precise intent will remain unknown. This danger is heightened by the likelihood of arguments that the foreperson misunderstood the court’s questions or provided a response not reflecting the entire jury’s intent.

Second, if the initial inquiry shows the jury’s intent differs from what the jury wrote on the verdict form, the best practice is to either send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. Id. at 314-15, 150 S.E. at 791. After the jury is discharged, the court may construe the verdict in a manner that diverges from the language used by the jury only when the surrounding circumstances make the jury’s intent unmistakable and the court’s construction reflects that intent. Id. at 319-20, 150 S.E. at 792-93.

I disagree with the majority’s statement in footnote 9 that Larry had no reason to seek further inquiry of the jury’s intent after the foreperson testified the actual and punitive damages amounts [***38] were cumulative. The movant has the most [*204] incentive to ask the court to send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. These practices best ensure the verdict reflects the jury’s intent, and a verdict rendered in accordance with them is nearly impossible to attack by arguing the jury’s intent is unclear. See Billups v. Leliuga, 303 S.C. 36, 39, 398 S.E.2d 75, 76 (Ct. App. 1990) (stating “a jury verdict should be upheld when it is possible to do so and carry into effect the jury’s clear intention,” and holding the jury’s intent was clear despite “some confusion in the jury’s initial written verdict” because the foreperson testified as to the jury’s intent, the clerk published the jury’s intent after the foreperson put the intent in writing, and the remaining jurors were polled to ensure their intent complied with the published intent); cf. Joiner v. Bevier, 155 S.C. 340, 351, 354-55, 152 S.E. 652, 656-57 (1930) (stating the court has the “duty to enforce a verdict, not to make it” and holding that despite some initial difficulty in getting the jury to render a verdict proper in form, the jury’s intent [***39] was “entirely clear” when the verdict after a second set of deliberations “corresponded exactly” with the special findings obtained prior to sending the jury back to deliberate). Moreover, if the above practices are not used, the movant risks having to meet its burden of establishing that the jury’s intent is absolutely clear using solely the surrounding circumstances of the case. Lorick, 153 S.C. at 319-20, 150 S.E. at 792-93. Here, the jury did not conform the verdict to its intent, nor was the jury polled. 12 Therefore, because the burden to establish the jury’s intent remains on Larry as the movant, 13 he must establish the jury’s intent was unmistakable based on the surrounding circumstances of the case.

12 In fairness to Larry, he asked the trial court to determine whether the verdict in his favor was intended to be cumulative. He suggested to the trial court, “[E]ither inquire of the jury . . . in the courtroom or . . . send them out.” The trial court instead only questioned the foreperson in the presence of the other jurors.

13 In discussing the movant’s incentive and burden, I am not referring to our rules of preservation. This issue is preserved because Larry sufficiently raised [***40] it to the trial court by seeking to clarify the jury’s intent in the above-suggested manner before the jury was discharged and the trial court ruled on his motion.

[*205] Despite the uphill battle undertaken in this case to establish the jury’s intent, I agree to remand for an entry of judgment against Alpine Towers in favor of Larry for $3,400,500.00 actual damages and $1,110,000.00 punitive damages. The surrounding circumstances of this case make the jury’s intent unmistakable. Taken together, the forelady’s testimony, the jury note, the jury charge, the total damages awarded, and the single injury alleged can lead to only one conclusion: the jury intended to award Larry [**904] $3,400,000 in actual damages 14 and $1,110,000 in punitive damages.

14 This amount omits the damages awarded for the strict liability claim because the jury note was sent before the jury re-deliberated the strict liability claim.

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In this mountain biking case, fighting each claim pays off.

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452

Gross negligence claim is thrown out because the complaint failed to plead enough facts.

This case is about a minor, who was attending a Boy Scout summer camp. While at camp, he went mountain biking on a camp bicycle. While riding the mountain bike the plaintiff alleges the brakes were not working and the plaintiff road off the trail and hit a tree.

The plaintiff’s complaint alleged the following:

(1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.

The plaintiff also requested gross negligence as part of his damages. His complaint stated, “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff….

Generally, gross negligence is defined as greater than normal negligence. (Only a lawyer could get away with that definition….) A better definition might be:

Another definition is the failure to exercise that care that even a careless person would exercise. Gross Negligence falls just short of a reckless disregard of the consequences of the actor’s acts. Aggravated Negligence is gross negligence. The actual differences between ordinary negligence and gross negligence are difficult to define, and ordinarily done by the jury.[1]

For more on Gross Negligence see Good Release stops lawsuit against Michigan’s bicycle renter based on marginal acts of bicycle renter or New Jersey upholds release for injury in faulty bike at fitness club.

The defendant camp filed a motion for summary judgment to eliminate the claim for gross negligence. The reason is based upon the complaint the allegation of gross negligence is the only real basis for the demand for punitive damages. Eliminate the claim for gross negligence and you have taken most of the fight out of the gross negligence claim and a lot of the ability of the plaintiff to threaten from the case.

A claim of gross negligence is not enough under Tennessee’s law to allow a jury to award punitive damages. Punitive damages can only be awarded if the jury finds the defendant acted “(1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.

Intentionally, fraudulently and maliciously are easily understood. In Tennessee, a person acts recklessly when:

A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.

Because the complaint did not allege how or why the defendant was aware of the problems with the bicycle or the trail, he could not sustain a claim for gross negligence and consequently, claim punitive damages.

The court granted the defendants claim.

So?

Not every lawsuit provides the opportunity to start and win a fight based on the pleadings. However, every pleading, complaint, should be examined to make sure, under the law of that state, the pleadings make a legal case.

Even if a flaw is found, you need to examine the cost of the fight and the benefit. Sometimes a flaw can be allowed to survive to be attacked later. However, litigation is a fight and every opportunity to weaken the opposing side should be taken.

For additional cases looking at the legal issues of cycling see:

Connecticut court works hard to void a release for a cycling event

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

How to fight a Bicycle Product Liability case in New York. One step at a time

Maine upholds release in a mountain bike race and awards defendants costs and attorney fees

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling

PA court upholds release in bicycle race

Release for training ride at Triathlon training camp stops lawsuit

Release stops most of the litigation against a ski area and USA Cycling in a Mountain Bike race but leaves other members out in the cold or should I say stuck in the courtroom

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

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[1]           Outdoor Recreation Risk Management, Insurance and Law, Chapter 7

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