185 Mile Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff

Decision clearly sets forth the requirements for the plaintiff to prove her claims which she failed to do.

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

State: Washington, Court of Appeals of Washington, Division Three

Plaintiff: Robin Johnson and Craig Johnson

Defendant: Spokane to Sandpoint, LLC, et al.

Plaintiff Claims: Negligence & Gross Negligence

Defendant Defenses: Release

Holding: for the defendant

Year: 2013

The plaintiff, an attorney signed up for the Spokane to Sandpoint race. The race is a team race run over two days and nights. The race is 185 miles long and an open course, meaning there is traffic on the course.

Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and night. The course is open, meaning it is not closed to public traffic.

The racers sign up online and sign an electronic release. The racers also receive a race handbook. The handbook explains the race and includes sections on crossing roads, highways and train tracks.

The plaintiff was crossing a highway, and she was hit by a car. The driver of the car stated the plaintiff walked out in front of her without looking. The plaintiff settled with the driver before this appeal.

As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. Ac-cording to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

The defendant filed a motion for summary judgment, which was granted and this appeal followed.

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

The appellate court first looked at the requirements for the plaintiff to survive and proceed to trial.

To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one party is under no obligation of care to the other, and shall not be held liable for ordinary negligence.

The court then looked at the requirements for releases to be valid under Washington’s law. (Of note, the court calls the exculpatory clause a waiver clause. However, the court refers to the agreement as a release.)

The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.

Under Washington’s law, releases are valid, unless they violate public policy. There are six different factors identified as attributable to public policy in Washington.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.

The court then went through all six factors and eliminated them all in one paragraph.

First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

Generally, Washington law looks at whether the issues that identify a public policy issue are those that affect the majority of the public in Washington. The court also found that other Washington decisions have found that recreational activities were not a public interest.

The second issue was the plaintiff’s claim the defendant was grossly negligent. Like most states, a release in Washington will not stop a claim for gross negligence. Gross negligence is greater than ordinary negligence and is care appreciably less than care required in an ordinary negligence claim.

“Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

The court then went through the facts and found that nothing required the defendant to do more than what the defendant did. Consequently, since there was no duty to do more, there was no breach of a duty, let alone acts, which were substantially below the duty.

The final argument the plaintiff argued was the release was ambiguous and not conspicuous. Here again, Washington’s law set forth the requirements for ambiguous and conspicuous quite clearly.

Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver.

The requirements basically require the release to be seen by the signor and not hidden. The exculpatory provisions must be evident, conspicuous and not hidden. The language must stand out so it is easily recognized with capital letters and/or bold type and there must be a signature line below the exculpatory provisions so that you can see your signature is related to the exculpatory provisions.

In this case, the release provisions were found not to be ambiguous. Additionally, the plaintiff admitted in her deposition that she understood from a legal perspective that the release would release her from claiming damages for any injuries.

The appellate court agreed with the trial court and affirmed the decision.

So Now What?

This decision is refreshing because it clearly sets out the requirements needed to prove a release valid and invalid. The definition of gross negligence also easily defined to that you can understand your duties and a substantial breach of your duties leading to a gross negligence claim.

Also of note, which the court pointed out was the information provided to the plaintiff and other racers in the racer handbook. Although not an express assumption of risk agreement, the handbook was still proof, the plaintiff assumed the risk, even though that issue was not argued. The risks of the race were set forth as well as the steps taken by the defendant to protect the runners in the handbook.

Again, the more information you provide to your clients, the more information you give them the better your chances of winning if your release fails.

What do you think? Leave a comment.

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Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Robin Johnson et al., Appellants, v. Spokane to Sandpoint, LLC, et al., Respondents.

No. 31042-6-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

July 23, 2013, Filed

NOTICE: Order Granting Motion to Publish September 10, 2013.

SUBSEQUENT HISTORY: Reported at Johnson v. Spokane to Sandpoint, LLC, 175 Wn. App. 1054, 2013 Wash. App. LEXIS 1835 (2013)

Ordered published by Johnson v. Spokane to Sandpoint, LLC, 2013 Wash. App. LEXIS 2129 (Wash. Ct. App., Sept. 10, 2013)

PRIOR HISTORY: [***1]

Appeal from Spokane Superior Court. Docket No: 10-2-05387-0. Date filed: 07/09/2012. Judge signing: Honorable Gregory D Sypolt.

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Superior Court: The Superior Court for Spokane County, No. 10-2-05387-0, Gregory D. Sypolt, J., on July 9, 2012, entered a summary judgment in favor of the race promoter.

Court of Appeals: Holding that a preinjury release and waiver signed by the runner precluded her recovering for ordinary negligence, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Duty — Necessity. The threshold question in a negligence action is whether the defendant owed a duty of care to the plaintiff.

[2] Negligence — Duty — Question of Law or Fact — In General. For purposes of a negligence cause of action, the existence of a duty of care is a question of law.

[3] Torts — Limitation of Liability — Validity — In General. Subject to certain exceptions, parties may expressly agree in advance that one is under no obligation of care to the other and shall not be liable for ordinary negligence.

[4] Torts — Limitation of Liability — Purpose. The function of a contractual waiver of negligence liability is to deny an injured party the right to recover damages from the person negligently causing the injury.

[5] Torts — Limitation of Liability — Validity — Test. A contractual waiver of negligence liability is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for the protection of others, or (3) it is inconspicuous.

[6] Torts — Limitation of Liability — Validity — Public Policy — Factors. In determining whether an agreement exculpating a party from liability for its future conduct violates public policy, a court will consider whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or its agents.

[7] Torts — Limitation of Liability — Validity — Public Policy — Public Interest — Recreational Activities. For purposes of determining the validity of a liability release clause under a public policy analysis, Washington courts do not favor finding a public interest in adult recreational activities.

[8] Torts — Limitation of Liability — Applicability — Gross Negligence. A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. “Gross negligence” is negligence substantially and appreciably greater than ordinary negligence, i.e., care substantially or appreciably less than the quantum of care inhering in ordinary negligence, or a failure to exercise slight care. A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply substantial evidence that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, a plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

[9] Negligence — Proof — Higher Standard — Summary Judgment — Prima Facie Case — Necessity. When the standard of proof in a negligence action is higher than ordinary negligence, in order to avoid an adverse summary judgment, a plaintiff must show that it can support its claim with prima facie proof supporting the higher level of proof.

[10] Torts — Limitation of Liability — Validity — Conspicuous Nature — Factors. The conspicuousness of a contractual liability waiver or release provision is determined by considering such factors as whether the provision is set apart or hidden within other provisions, whether the provision heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. Brown, J., delivered the opinion for a unanimous court.

COUNSEL: Martin A. Peltram, for appellants.

Thomas C. Stratton (of Rockey Stratton PS), for respondents.

JUDGES: Authored by Stephen M. Brown. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.

OPINION BY: Stephen M. Brown

OPINION

[*455] [**530] ¶1 Brown, J. — Robin Johnson and Craig Johnson appeal the dismissal of their personal injury suit against Spokane to Sandpoint LLC after the trial court ruled the preinjury release and waiver Ms. Johnson signed precluded recovery. The Johnsons contend the release is unenforceable because it is ambiguous, offends public policy, and because Spokane to Sandpoint was grossly negligent. We disagree and affirm.

FACTS

¶2 Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and [**531] night. The course is open, meaning it is not closed to public traffic.

¶3 When registering on line, the runners must electronically acknowledge a release of liability and waiver, which states:

I understand that by registering I have accepted and agreed to the waiver [***2] and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understood any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.

[*456] Clerk’s Papers (CP) at 246. Ms. Johnson, an attorney, registered on line for the 2010 Spokane to Sandpoint race and acknowledged the above waiver, plus she agreed to “waive and release Spokane to Sandpointfrom any and all claims or liability of any kind arising out of my participation in this event, even though that liability may arise out negligence or carelessness on the part of persons on this waiver.” CP at 246. Ms. Johnson agreed she read the agreement carefully and understood the terms and she signed the agreement, “FREELY AND VOLUNTARILY, WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE” and that her signature was [***3] “TO SERVE AS CONFIRMATION OF MY COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS, CONDITIONS, AND PROVISIONS OF THIS AGREEMENT.” CP at 248.

¶4 Spokane to Sandpoint provided a race handbook to Ms. Johnson, explaining all facets of the race, including crossing public highways and train tracks. The fourth leg of the race crossed U.S. Route 2 at its intersection with Colbert Road. At that location, U.S. Route 2 is a divided highway that runs north and south. It has two lanes in each direction, separated by a median strip. A sign was posted on Colbert Road telling the runners “caution crossing highway.” CP at 128. Signs were posted along the race route informing drivers that runners were running along the race route roads.

¶5 As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. According to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

¶6 The Johnsons sued Spokane [***4] to Sandpoint, Ms. Young, and Ms. Young’s parents. The Johnsons dismissed their [*457] claims against Ms. Young and her parents following a settlement.

¶7 During Ms. Johnson’s deposition, counsel for Spokane to Sandpoint asked her if she understood that the release she signed “would … release the entities for any personal injury that might occur to you during the activity?” CP at 138. Ms. Johnson replied, “Yes, I understand that from a legal perspective completely.” CP at 139. When questioned about the on line registration process, counsel asked:

Q. Do you recall whether you clicked yes to the waiver language at all on the registration process?

A. On the registration process I assume I must have clicked because all that information is there and I did it. Nobody else did it for me.

CP at 156.

¶8 Spokane to Sandpoint requested summary judgment dismissal, arguing the preinjury waiver and release agreed to by Ms. Johnson was conspicuous and not against public policy and the Johnsons lacked the evidence of gross negligence necessary to overcome the release. The trial court agreed and dismissed the Johnsons’ complaint.

ANALYSIS

¶9 The issue is whether the trial court erred in summarily dismissing the [**532] Johnsons’ [***5] negligence complaint. The Johnsons contend the release and waiver signed by Ms. Johnson prior to her injury was invalid and unenforceable because it was ambiguous and against public policy, and because Spokane to Sandpoint was grossly negligent.

¶10 [HN1] We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). [HN2] Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where different [*458] competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).

[1-3] ¶11 [HN3] To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 339, 35 P.3d 383 (2001) (citing Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994)). Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one [***6] party is under no obligation of care to the other, and shall not be held liable for ordinary negligence. Chauvlier, 109 Wn. App. at 339.

[4, 5] ¶12 [HN4] The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 491, 834 P.2d 6 (1992). The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Stokes v. Bally’s Pacwest, Inc., 113 Wn. App. 442, 445, 54 P.3d 161 (2002).

[6] ¶13 [HN5] In Washington, contracts releasing liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974). [HN6] Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members [***7] of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established [*459] standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963)). The Johnsons fail to establish all six factors.

¶14 First, 185-mile relay races are not regulated; [***8] second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

[7] ¶15 [HN7] Washington courts have not favored finding a public interest in adult recreational activities. As noted in Hewitt, 11 Wn. App. [**533] at 74, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty.” Similarly, “[a]lthough a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest.” Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981). Washington courts have come to the same conclusion regarding [*460] tobogganing and demolition car racing. Broderson v. Rainer Nat’l Park Co., 187 Wash. 399, 406, 60 P.2d 234 (1936), overruled in part by [***9] Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 853, 728 P.2d 617 (1986).

[8] ¶16 [HN8] A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. Vodopest v. MacGregor, 128 Wn.2d 840, 853, 913 P.2d 779 (1996). “Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965); see 6 Washington Practice: Washington Pattern Jury Instructions: Civil 10.07 (6th ed. 2012) (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993). To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises [***10] to the level of gross negligence. CR 56(e); Boyce, 71 Wn. App. at 666.

¶17 Spokane to Sandpoint marked the roadways to warn both drivers and runners of danger and provided a handbook to each runner advising about crossing busy roadways and highways. Nothing in this record establishes any duty to do more.

¶18 Our case is somewhat like Conradt, where Mr. Conradt was hurt in an auto race. 45 Wn. App. at 848. He signed a release before being told of a change in the race direction. Id. Mr. Conradt argued the risk had been materially altered by that change after he signed the release. Id. at 850. He explained he could not corner as well and he had not understood the additional risk. Id. The race promoter [*461] requested summary judgment based on the release. Id. at 848. The trial court dismissed Mr. Conradt’s complaint, finding the release was valid and the promoter’s action did not amount to gross negligence. Id. at 852. The Conradt court affirmed, holding the promoter’s “conduct was not so substantially and appreciably substandard that it rendered the release invalid.” Id.

[9] ¶19 Similarly, the Johnsons fail to show Spokane to Sandpoint committed gross negligence by failing to exercise slight care. See Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) [***11] (When a standard of proof is higher than ordinary negligence, the nonmoving parties must show that they can support their claim with prima facie proof supporting the higher level of proof.). Spokane to Sandpoint’s conduct does not reach gross negligence under the circumstances presented here.

[10] ¶20 Finally, the Johnsons argue the release was ambiguous and not conspicuous. Several Washington courts have analyzed waiver provisions to determine whether the language was conspicuous. [HN9] Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. See Baker, 79 Wn.2d at 202; McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989); Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.

[**534] ¶21 The release executed by Ms. Johnson on line clearly sets apart the release language in either italicized letters or in all capital letters or both. The [***12] document was conspicuous with a header stating, “WAIVER AND RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” CP at 246. The waiver repeatedly warned Ms. Johnson that she was giving up her legal rights by [*462] signing the waiver, with this clearly indicated above the signature line. Although the Johnsons argue the waiver was ambiguous and, therefore, inconspicuous, Ms. Johnson (an attorney) acknowledged in her deposition that from a “legal perspective” she understood the release she signed “would … release the entities for any personal injury that might occur … during the activity.” CP at 138-39. Thus, no genuine issues of material fact remain regarding ambiguity or conspicuousness.

¶22 Given our analysis, we hold reasonable minds can reach but one conclusion; the preinjury release and waiver signed by Ms. Johnson precludes her from claiming an ordinary negligence duty by Spokane to Sandpoint, thus preventing her from seeking liability damages for her injuries. The trial court correctly concluded likewise in summarily dismissing the Johnsons’ complaint.

¶23 Affirmed. [***13]

Korsmo, C.J., and Siddoway, J., concur.


Release and assumption of the risk are both used to defeat a para-athlete’s claims when she collided with a runner on the cycling portion of the course

A good procedure for tracking releases and bibs help prove the plaintiff had signed the release when she denied that fact in her claims.

Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)

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

Plaintiff: SUPREME COURT OF NEW YORK, NEW YORK COUNTY

Defendant: City of New York, Korff Enterprises, Inc., and Central Park Conservancy

Plaintiff Claims: negligently permitted and/or allowed a non-participant jogger to enter upon the race course and violently collide with Hines.

Defendant Defenses: Release

Holding: For the Defendant

Year: 2016

This was a simple case where a triathlon course was closed, but a jogger ran into a cyclist. However, there was one quirk. The cyclist was para-athlete riding a push-rim racer.

Hines, an experienced para-athlete, claims she was injured during the running portion of the triathlon when she was operating a push-rim racer and was struck by an alleged non-participant jogger. The accident occurred in Central Park at or around West 100th Street and West Drive.

Although the rights of a para-athlete are identical to those of any other athlete, it is interesting to see if either side used the issue legally to their advantage. Neither did.

The plaintiff sued for her injuries.

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

The court first looked at how releases are viewed under New York law. New York has a statute voiding releases if those places using them are places of amusement charging for admission. See New York Law Restricting the Use of Releases.

§ 5-326.  Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

However, the court found since this was a race it was not an admission fee but a participation fee; the statute did not apply.

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law Language relieving one from liability must be unmistakable and easily understood. The waiver at issue here clearly and unequivocally ex-presses the intention of the parties to relieve defendants of liability for their own negligence and because the entry fee paid by Hines was for her participation in the triathlon, not an admission fee allowing her to use the public park and roadway where her accident allegedly occurred, the waiver does not violate General Obligations Law § 5-326

The next issue was the plaintiff claimed that she did not sign the release. However, the husband under oath testified that the release could have been his wife’s. “George Hines, who as a party to the action is an interested witness, testified that he believed the signature on the waiver was Hines’.”

In addition, the procedures at the beginning of the race required a racer’s signature. A racer did not get a bib until they had signed the release and proving their identify.

Moreover, as defendants point out, athletes could not participate in the triathlon without signing the waiver in person and presenting photographic identification at a pre-race expo and Hines was seen by non-party witness Kathleen Bateman of Achilles International, Inc. at the expo waiting in line with her handlers to pick up her race bib.

Whether the identification and procedures are in place to prevent fraud in case of an accident and subsequent suit or to prevent fraud among the racers is not clear.

The plaintiff also claimed the defendant was negligent in their cone placement and location of race marshals. She argued the cones should have been placed closer together.

On this claim, the court argued the plaintiff had assumed the risk by racing.

Moreover, the primary assumption of the risk doctrine provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” and it is “not necessary to the application of [the doctrine] that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as the he or she is aware of the potential for injury of the mechanism from which the injury results”

The application of the doctrine of assumption of risk is to be applied based upon the background, skill and experience of the plaintiff. In this case, the plaintiff had considerable experience racing in triathlons.

Awareness of risk, including risks created by less than optimal “is not to be determined in a vacuum” but, rather, “against the background of the skill and experience of the particular plaintiff”. Hines is a highly decorated and highly experienced para-athlete who participated in dozens races over her career, many of which took place in Central Park. Hines’ testimony that other race courses in Central Park were set up differently and delineated with cones and marshals differently than the way in which defendants allegedly set up the triathlon course establishes that Hines was aware that collisions with non-participants were an inherent risk in participating in a triathlon in Central Park.

Because the plaintiff was experienced in racing in triathlons and signed a release her claims were barred.

So Now What?

This case resolved around whether or not the defendant could prove the plaintiff had signed a release, when denied she had signed it. By having procedures set that proved who the person was and not allowing the person to receive a bib, and consequently, race, until a release had been signed was pivotal.

On top of that when a party to the suit, in this case the husband admitted the signature could have been the plaintiffs the court took that statement as an admittance against interest. The husband was a litigant because he was claiming damages as a spouse. A spouse’s claim, as in this case are derivative of the other spaces main claims. That means the plaintiff spouse must prove her claims or the derivative claims also fail.

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2016 Gravel Grinder Championship Series

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A federal district court in Massachusetts upholds indemnification clause in a release.

All prior decisions have found that indemnification clauses in releases are not effective because it creates a conflict of interest within a family.

Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759

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

Plaintiff: Cheryl Angelo, Personal Representative of the Estate of Richard Angelo,

Defendant: USA Triathlon

Plaintiff Claims: wrongful death, conscious pain and suffering, and negligent infliction of emotional distress

Defendant Defenses: Release and indemnification

Holding: not a final ruling

Year: 2014

I cannot determine if this case is over, however, the ruling is quite interesting and worth the risk in having to reverse this post.

The deceased joined the USA Triathlon (USAT) and in doing so signed a Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement. The deceased signed the document electronically. The deceased registered online for the National Age Group Championship in Vermont and again signed an “indemnity agreement” electronically. The two releases were identical.

The deceased died during the triathlon during the swim portion of the event. The deceased wife and personal representative of his estate brought this lawsuit in Federal District Court of Massachusetts.

The defendant USAT filed a motion for summary judgment, and this review is of the court’s ruling on that motion.

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

The motion for Summary Judgment was a partial motion on the counterclaim of the defendant based on the indemnity provisions in the two releases.

The court refers to the releases as “the indemnity agreements” which create a lot of confusion when reading the decision. The court first examined Massachusetts law relating to releases.

Under Massachusetts law, “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.”

And then Massachusetts law on indemnity agreements.

Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate.

The language in the indemnification agreement was deemed by the court to be broad. The plaintiff argued the release was ambiguous as to who the release applied to. However, the court disagreed finding the release:

…clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation in the Event.” Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous.

The court then looked at how the release affected the specific claims of the plaintiff. The first count in the complaint was based on wrongful death, and the third was for wrongful death because of gross negligence of the defendant and included a claim for punitive damages.

The court looked at the damages that might be recoverable under these two theories because how the money was identified would determine if the money could be recovered on the indemnification claim.

That means the indemnification claim is against the person who signed the release or in this case their estate. The deceased could not pledge his wife’s assets to the indemnification because he could not sign for her, only his assets. “The decedent, while having authority to bind his estate, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby.” The wrongful-death claim money is not an asset of the state; it is held by the personal representative on behalf of the heirs to the estate. So any money recovered under the wrongful-death statute or claim would not be subject to indemnification.

That is because “w]rongful death is not, in any traditional sense, a claim of the decedent.”

Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate.

Then the court looked to see if the release would stop gross negligence claims. The court found no “controlling authority” on this issue, but held that it would not stop a claim for gross negligence based on the law of appellate decisions in the state.

In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence.

So the court found the release would stop the negligence claims and dismissed count one of the complaints and found that the release would not stop a claim for gross negligence and allowed count three to proceed.

However, the court also stated the motion was denied if the indemnification provision in the release attempted to be satisfied from the wrongful-death proceeds. Alternatively, the indemnification clause would apply to any money’s received for any successful claim other than wrongful death.

The second claim was for conscious pain and suffering of the decedent. Under Massachusetts law, conscious pain and suffering is a claim of the decedent, brought on behalf of the decedent by his estate. The release barred this claim and would allow the defendant to be indemnified by it. “By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim.”

Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.

The fourth count was for Negligent Infliction of Emotional Distress, which was inflicted on the wife of the decedent who was present at the race. The original complaint was only brought in the name of the personal representative, not her name individually. Consequently, the court agreed to allow the plaintiff to amend her complaint to bring this claim.

However, the court also found that any money received by the plaintiff on her claim for negligent infliction of emotional distress would also be subject to the indemnification claims of the defendant.

The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim.

However, the indemnification claim was only applicable to any money paid on this claim to the decedent, not the decedent’s wife. Again, the decedent could not pledge his wife’s assets by his signature.

The court looked at the defendants claim that the defense costs of the action should be paid based on the indemnification clause. The court agreed with the defendant’s argument for the costs to.

The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs, which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim, which is subject to indemnification.

So any money the lawsuit received that was payable to the estate was subject to the indemnification clause in the release, and that money could be received based on money paid or the cost of defending the lawsuit and recovering the money. Money held in trust, based on a wrongful-death claim was not subject to indemnification.

The release blocked all claims of the decedent and any claims of the wife that were derivative of the decedent’s claims.

Effectively, the case is over because there is no way to get any money, that would not be subject to indemnification. Then any other asset of the estate would be subject to the indemnification due to the cost of defending the lawsuit.

So Now What?

The reasoning for the motion for summary judgment is simple. If the defendant is able to act on the indemnification, any money received by the plaintiff will just turn around and go back to the defendant. Consequently, the damages are reduced to about zero and the chances of settling sky rocket.

However, the importance of the motion is the court upheld the indemnification clause! Normally courts through these out as being a violation of the doctrine or parental immunity, or because they create a conflict of interest between members of a family.

I have never seen an indemnification clause upheld in a recreational release.

See Indemnification agreements? What are you signing?

What do you think? Leave a comment.

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

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Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759

Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759

Cheryl Angelo, Personal Representative of the Estate of Richard Angelo, Plaintiff, v. USA Triathlon, Defendant.

Civil Action No. 13-12177-LTS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2014 U.S. Dist. LEXIS 131759

September 18, 2014, Decided

September 19, 2014, Filed

COUNSEL: [*1] For Cheryl Angelo, Plaintiff: Alan L. Cantor, LEAD ATTORNEY, Joseph A. Swartz, Peter J. Towne, Swartz & Swartz, Boston, MA.

For USA TRIATHLON, Defendant: Douglas L. Fox, Shumway, Giguere, Fox PC, Worcester, MA.

JUDGES: Leo T. Sorokin, United States District Judge.

OPINION BY: Leo T. Sorokin

OPINION

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

SOROKIN, D.J.

This action arises from a tragic set of facts in which Richard Angelo died while participating in the swim portion of a triathlon organized by the defendant, USA Triathlon (“USAT”). Plaintiff Cheryl Angelo (“the plaintiff”), as personal representative of Richard Angelo (“Angelo” or “the decedent”), has brought claims of wrongful death, conscious pain and suffering, and negligent infliction of emotional distress. USAT has counterclaimed for indemnity against any liability and legal costs associated with this action pursuant to indemnity agreements executed by the decedent prior to his participation in the triathlon. USAT has now moved for partial summary judgment on its claim for indemnity. Doc. No. 18. The plaintiff has opposed the Motion. Doc. No. 19. For the reasons stated below, USAT’s Motion is ALLOWED IN PART and DENIED IN PART.

I. [*2] STATEMENT OF FACTS

The following facts are stated in the light most favorable to the plaintiff as the nonmoving party, although the key facts for the purposes of this motion are not disputed. Angelo was a member of USAT since, at the latest, 2011. Doc. No. 18-1 at 1 ¶ 3. When Angelo last renewed his membership on August 12, 2011, he agreed to and electronically signed a “Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement.” Id. at 1 ¶ 3, 4. That agreement only required the member to execute the document, and, accordingly, the plaintiff did not sign the form. Id. at 4-5. That document contained a provision that, in its entirety, reads as follows:

4. I hereby Release, Waive and Covenant Not to Sue, and further agree to Indemnify, Defend and Hold Harmless the following parties: USAT, the Event Organizers and Promoters, Race Directors, Sponsors, Advertisers, Host Cities, Local Organizing Committees, Venues and Property Owners upon which the Event takes place, Law Enforcement Agencies and other Public Entities providing support for the Event, and each of their respective parent, subsidiary and affiliated companies, officers, directors, partners, shareholders, members, agents, employees [*3] and volunteers (Individually and Collectively, the “Released Parties” or “Event Organizers”), with respect to any liability, claim(s), demand(s), cause(s) of action, damage(s), loss or expense (including court costs and reasonable attorneys [sic] fees) of any kind or nature (“Liability”) which may arise out of, result from, or relate to my participation in the Event, including claims for Liability caused in whole or in part by the negligence of the Released Parties. I further agree that if, despite this Agreement, I, or anyone on my behalf, makes a claim for Liability against any of the Released Parties, I will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.

Id. at 4.

USAT arranged to hold its National Age Group Championship on August 18, 2012, in Burlington, Vermont. Id. at 2 ¶ 5. On February 17, 2012, Angelo registered for the championship and, as part of his registration, electronically signed an indemnity agreement identical to the one excerpted above. Id. at 2 ¶ 6. As with the prior agreement, only Angelo as the participant was required to, and in fact did, sign the form. Doc. Nos. 18-1 at 33-34, 19-2 [*4] at 3. Angelo competed in that triathlon and died during his participation in the swim portion of that event or shortly thereafter. Doc. No. 18-2 at 11-12.

The plaintiff, the decedent’s wife and the personal representative of his estate, then brought this action in Essex Superior Court, alleging wrongful death, conscious pain and suffering by the decedent, gross negligence resulting in the decedent’s death, and negligent infliction of emotional distress suffered by the plaintiff, who was present at the site of the race. Doc. No. 6 at 12-16. USAT subsequently removed the action to this Court. Doc. No. 1.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once a party “has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The Court is “obliged to []view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences [*5] in the nonmoving party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “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 that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

III. DISCUSSION

USAT has moved for partial summary judgment on their counterclaim for indemnity.1 USAT asserts that the decedent’s execution of the two release and indemnity agreements (“the indemnity agreements”) released or indemnified, or both, all claims that arise from his participation in the National Age Group Championship, including all claims brought by the plaintiff in this action. The plaintiff counters that the indemnity agreements could not function to release her claims for wrongful death or negligent infliction of emotional distress, and that an indemnity agreement is not enforceable insofar as it exempts the indemnitee from liability for its own grossly negligent conduct.

1 The Court understands this motion for summary judgment to be limited to the scope of the release and indemnity agreement [*6] and its application to the plaintiff’s claims as raised in the Complaint and as amplified in the motion papers. Despite USAT’s argument to the contrary, the Court does not believe this motion to be an appropriate vehicle to address the substantive merits of the plaintiff’s pleadings or claims.

Under Massachusetts law,2 “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.” Post v. Belmont Country Club, Inc., 60 Mass. App. Ct. 645, 805 N.E.2d 63, 69 (Mass. App. Ct. 2004) (quoting Shea v. Bay State Gas Co., 383 Mass. 218, 418 N.E.2d 597, 600 (Mass. 1981)). Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Id. at 70. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate. Id. at 71.

2 The parties do not contend that the law of any other state applies.

Here, the language in the indemnity provision is broad. The plaintiff argues, briefly, that the indemnity agreements are ambiguous as to who is bound by the agreements. The Court disagrees. The agreement clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation [*7] in the Event.” Doc. No. 18-1 at 4. By the plain language of the provision, the signatory of the agreement agreed to indemnify USAT for any losses arising from his participation in the triathlon, including losses and damages associated with lawsuits arising from his participation. See Post, 805 N.E.2d at 70. Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous. A close examination is required, however, to ascertain the applicability of the provision to the specific claims raised and the sources available to satisfy the indemnity.

A. Counts 1 and 3: Wrongful Death

The first count in the plaintiff’s Complaint alleges wrongful death due to USAT’s negligence. The third count alleges wrongful death due to USAT’s gross negligence and seeks punitive damages. Under Massachusetts law, an action for wrongful death is “brought by a personal representative on behalf of the designated categories of beneficiaries” set forth by statute. Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (Mass. 1972); see Mass. Gen. Laws ch. 229, §§ 1, 2. “The money recovered upon a wrongful death claim is not a general asset of the probate estate, but constitutes a statutory trust fund, held by the administratrix as trustee for distribution to the statutory beneficiaries.”3 Marco v. Green, 415 Mass. 732, 615 N.E.2d 928, 932 (Mass. 1993) (quoting Sullivan v. Goulette, 344 Mass. 307, 182 N.E.2d 519, 523 (Mass. 1962)). These [*8] aspects of Massachusetts law have led another judge of this Court to the conclusion that “[w]rongful death is not, in any traditional sense, a claim of the decedent.” Chung v. StudentCity.com, Inc., Civ. A. 10-10943-RWZ, 2011 U.S. Dist. LEXIS 102370, 2011 WL 4074297, at *2 (D. Mass. Sept. 9, 2011).

3 The Massachusetts Legislature has created limited statutory exceptions whereby the recovery on a wrongful death claim may be reached to pay certain specified expenses. Mass. Gen. Laws ch. 229, § 6A. None of those exceptions are implicated by the present Motion. See id.

As stated above, the indemnity agreements signed by the decedent, by their terms, clearly were intended to indemnify losses arising from an action for wrongful death as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnity on losses resulting from that claim. That does not end the matter, however, because the parties raise the question of where USAT may look in order to satisfy the indemnity obligation. The decedent, while having authority to bind his estate, see Post, 805 N.E.2d at 71, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby, see Chung, 2011 U.S. Dist. LEXIS 102370, 2011 WL 4074297, at *2. Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. See [*9] Post, 805 N.E.2d at 71 (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate. See Estate of Bogomolsky v. Estate of Furlong, Civ. A. 14-12463-FDS, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2 (D. Mass. June 26, 2014).4 USAT concedes this outcome as to the plaintiff’s negligent infliction of emotional distress claim, Doc. No. 20 at 11-12, and given the structure of wrongful death claims in Massachusetts, there is no reason for a different result as to the wrongful death claims.5

4 In Estate of Bogomolsky, a recent decision of another session of this Court, Judge Saylor came to the same conclusion, finding that a judgment creditor of a decedent’s estate would not be able to restrain the proceeds of an insurance policy distributed pursuant to the wrongful death statute, as the proceeds of the policy were held in trust for the decedent’s next of kin and did not belong to the decedent’s estate. Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2.

5 While the plaintiff notes that the Massachusetts Appeals Court has reserved the question of whether an indemnification provision would be [*10] enforced to effectively release the claims of people who were not signatories of such an agreement, see Post, 805 N.E.2d at 70-71, this case, as in Post, does not present that circumstance, as the indemnity agreements in this case do not purport to extinguish the plaintiff’s right to bring her claims nor her right to recover on those claims.

Count three of the plaintiff’s Complaint, alleging that the decedent’s death was a result of USAT’s gross negligence, raises the issue of whether Massachusetts courts would enforce an indemnity contract to the extent it functioned to indemnify a party’s own gross negligence. The Court has uncovered no controlling authority from the Supreme Judicial Court of Massachusetts on this issue, nor any case of the Massachusetts Appeals Court on point. In such a case, “[w]here the state’s highest court has not definitively weighed in, a federal court applying state law ‘may consider analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.'” Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 164 (1st Cir. 2009) (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38 (1st Cir. 2001)).

In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, [*11] a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997). The Supreme Judicial Court, although not adopting that holding, has noted that public policy reasons exist for treating ordinary negligence differently from gross negligence when enforcing releases. Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 748 n.12 (Mass. 2002). Finally, Judge Saylor of this Court, examining this caselaw, has concluded that the Supreme Judicial Court would not enforce an indemnity agreement to the extent it provided for indemnification of a party’s own gross negligence. CSX Transp., Inc. v. Mass. Bay Transp. Auth., 697 F. Supp. 2d 213, 227 (D. Mass. 2010).

This Court, having studied the caselaw, agrees with and reaches the same conclusion as Judge Saylor: specifically that Massachusetts courts would not enforce an indemnity provision insofar as it relieved a party from liability stemming from its own gross negligence. Thus, the indemnity agreements executed by the decedent are not enforceable to the extent they would require the decedent’s estate to indemnify losses arising from USAT’s grossly negligent conduct.6

6 This conclusion would gain significance if the plaintiff were to be awarded punitive damages owing to USAT’s alleged gross negligence. Punitive damages [*12] awarded under the wrongful death statute, unlike compensatory damages under that statute, are considered general assets of the decedent’s estate. Burt v. Meyer, 400 Mass. 185, 508 N.E.2d 598, 601-02 (Mass. 1987). Any punitive damages, however, could not be reached in satisfaction of the indemnity obligation because gross negligence or more culpable conduct is the predicate upon which an award of punitive damages is based under the statute. See Mass. Gen. Laws ch. 229, § 2.

Accordingly, USAT’s Motion for Summary Judgment as to the plaintiff’s claims of wrongful death is ALLOWED insofar as it seeks indemnity from the decedent’s estate for USAT’s allegedly negligent conduct. The Motion is DENIED insofar as it seeks to satisfy the indemnity obligation from any amounts recovered on the wrongful death claim and insofar as the agreement would require the decedent’s estate to indemnify liability arising from USAT’s grossly negligent conduct.

B. Count 2: Conscious Pain and Suffering

The second count of the plaintiff’s Complaint alleges that USAT’s negligence caused the decedent’s conscious pain and suffering. Under Massachusetts law, a claim for conscious pain and suffering is a claim of the decedent, which may be brought on the decedent’s behalf by his or her personal representative. [*13] Gaudette, 284 N.E.2d at 224-25; see Mass. Gen. Laws ch. 229, § 6. Any recovery on such a claim is held as an asset of the decedent’s estate. Mass. Gen. Laws ch. 229, § 6. By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim. Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. See Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.

In response to this argument, however, the plaintiff has stated her intent to proceed on the conscious suffering count only on a theory of gross negligence, and not to proceed upon ordinary negligence. As noted above, both the release and the indemnity provisions of the agreements are unenforceable to exempt USAT from liability for their own grossly negligent conduct. See CSX, 697 F. Supp. 2d at 227; Zavras, 687 N.E.2d at 1265. Thus, insofar as the plaintiff chooses to proceed on the conscious pain and suffering count only on a theory of gross negligence, USAT’s Motion for Summary [*14] Judgment is DENIED. If she chooses to so proceed, the plaintiff shall amend her Complaint accordingly.

C. Count 4: Negligent Infliction of Emotional Distress

The fourth and final count of the plaintiff’s Complaint alleges USAT’s negligent infliction of emotional distress on the plaintiff, who was present at the race venue. As an initial matter, the plaintiff, as currently denominated in the Complaint, only brings claims as personal representative of the estate of the decedent. Negligent infliction of emotional distress, however, alleges a harm directly against the plaintiff in her individual capacity, see Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920, 927 (Mass. 1982), and thus cannot be brought in a representative capacity.

In response, the plaintiff has indicated her intent to amend her Complaint to bring this claim in her individual capacity. The Court will allow the amendment, as it is not futile in light of the Court’s rulings on the indemnity agreements. The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim. As conceded by [*15] USAT, however, any recovery on the emotional distress claim would belong to the plaintiff individually, and thus USAT would not be able to use that recovery to satisfy the indemnity and may look only to the estate of the decedent. Doc. No. 20 at 11-12. Accordingly, the plaintiff may so amend her Complaint to perfect her claim of negligent infliction of emotional distress.

D. Defense Costs

USAT also claims an entitlement to defense costs arising from the provisions in the indemnity agreements obligating the signatory to defend and hold harmless USAT. The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim which is subject to indemnification.7 See Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir. 1997) (“[U]nder Massachusetts law, if an insurer has a duty to defend one count of a complaint, it must defend them all.” (citing Aetna Cas. & Surety Co. v. Continental Cas. Co., 413 Mass. 730, 604 N.E.2d 30, 32 n.1 (Mass. 1992)).

7 Should the plaintiff decide to proceed only on those claims that, following the reasoning of this Order, are not subject to the [*16] indemnity obligation, the parties may request leave to brief the issue of USAT’s entitlement to prospective defense costs at that time.

IV. CONCLUSION

In conclusion, USAT’s Motion for Summary Judgment, Doc. No. 18, is ALLOWED as set forth above insofar as USAT seeks to establish the release of the conscious pain and suffering claim and indemnity from the decedent’s estate for the claims wrongful death, conscious pain and suffering, and negligent infliction of emotional distress caused by USAT’s ordinary negligence. USAT’s Motion is DENIED, however, insofar as it argues for release of or indemnity on any claims caused by their own gross negligence and insofar as it seeks satisfaction of the indemnity obligation from any recovery on the wrongful death or emotional distress claims. The plaintiff shall amend the Complaint within seven days to more clearly specify the capacity in which each claim is brought and add the allegations of gross negligence, both as described in the plaintiff’s papers. The defendant shall respond to the Amended Complaint within seven days of its filing. The Court will hold a Rule 16 conference on October 21, 2014 at 1 p.m.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United [*17] States District Judge


Making statements contrary to release can be barred by a release, maybe, but may be gross, wilful and wanton negligence which the release does not stop.

Plaintiff signed a release to participate in the Warrior Dash race. An employee of the race was encouraging participants to dive into a mud pit. Plaintiff dove into the mud pit rendering himself a quadriplegic.

Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

State: Federal District Court for the Eastern District of Michigan

Plaintiff: James Sa

Defendant: Red Frog Events, LLC, an Illinois corporation

Plaintiff Claims: negligence, gross negligence, and willful and wanton misconduct

Defendant Defenses: release and failure to state a claim upon which relief may be granted

Holding: for the defendant on the negligence claim because of the release, for the plaintiff on the gross negligence, and willful and wanton misconduct claims

Year: 2013

This case is possible still ongoing. How the final decision will evolve is unknown. However, the federal district court did arrive at some great analysis of the case.

This case comes out of the new fad, extreme obstacle racing. In these races participants run through live electrical wires, jump through fire and here, crawl through a mud pit. These races are known by various names, Warrior Dash, Spartan Race and Tough Mudder are the most well-known.

In this case, the plaintiff signed up for a Warrior Dash 5K race and signed a release. The release specifically warned against diving into the mud pit. The mud pit was right in front of the bleachers and the last obstacle on the course.

At the mud, pit was an employee of the defendant with a microphone, and loudspeaker “acting as an emcee” for the event.

Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged.

So many people were diving into the mud pit that people were blogging about it and posting photos online.

The plaintiff followed the emcee’s “encouragement” and dove into the mud pit resulting in paralysis from the chest down. The plaintiff sued, and the defendant filed a motion to dismiss.

A motion to dismiss is usually filed by the defendant prior to filing an answer. The basis is the pleadings are so lacking in any facts or there is no law to support a claim. In reviewing the motion, the court must accept the allegations and facts in the complaint as true. It is unclear in reading this case when the motion to dismiss was filed. This opinion is the court’s response to the motion to dismiss.

Summary of the case

The court first looked at whether the release acted to stop the negligence claims of the plaintiff. Releases are valid in Michigan. Under Michigan law a release’s validity:

…turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.

Whether the release is valid is a question of law. The plaintiff did not argue that he signed the release. The court pointed out possible ways the plaintiff could void the release which the plaintiff did not use.

He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.

Ninety-nine percent of the time plaintiff’s attack the validity of the release based on their competence or understanding of the release. In not doing so, I would guess the plaintiff shocked the judge so he put in this language. The plaintiff’s first argued the release was invalid because:

…that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.

(This argument has been used endlessly and is so easily avoided. Use the word negligence in your release.)

Here the language used by the defendant met the requirements to put the plaintiff on notice that he was giving up his rights to sue for negligence. “…although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.”

The release language under Michigan’s law is called the indemnity provision or clause. That translation of the phrase is different from most other states. Here, it is like saying, by signing the release the plaintiff agrees to indemnify himself for his injuries.

…the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

The next argument of the plaintiff’s is brilliant and if successful would bring down hundreds of releases across the United States. Releases written by attorneys or non-attorneys in an attempt to soften the blow will put statements in the release about how safe the activity is, how well run the operation is or that accidents rarely happen.

The plaintiff argued that other statements in the release gave the plaintiff the impression that the defendant would not be negligent in the operation of the race.

For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.

The court did not accept this argument because the paragraph this language was in went on stating there was a risk of injury entering the race.

The final argument by the plaintiff was also unique and if accepted would invalidate dozens of releases. The plaintiff argued that the statements by the employee of the defendant, the emcee, invalidated the release. In legal language, the statements of the emcee “constituted a waiver and modification of the release of liability.”

In sum, Plaintiff argues, “[t]his conduct led James [the plaintiff] to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.”

Under Michigan’s law, any waiver of a written contract must be in writing unless the waiver language is consistent with the strict compliance language of the contract. Meaning the waiver language must be of the same type and of the same legal tone as the original contract.

Even assuming that Michigan law permits parties to orally modify a waiver and release, the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

The court upheld the validity of the release and held the release stopped the simple negligence claims of the plaintiff.

On the second and third claims, gross negligence, and willful and wanton misconduct, a release under Michigan’s law does not work. The issue then becomes are there enough allegations to the facts in the complaint and documents filed with the court to this point to support the plaintiff’s claim of gross negligence, and willful and wanton misconduct.

Under Michigan’s law:

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.”

Under Michigan’s law, a release does not stop claims for gross negligence. So the gross negligence claim survives the defense of release. The issue then is whether the plaintiff as plead enough facts that a jury may find give rise to gross negligence.

…it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether an injury would result.

The court, based upon the statements of the emcee at the mud pit encouraging people to dive into the pit were enough to possibly support a claim for gross negligence.

Under Michigan’s law, Wilful and Want misconduct is different and distinct from gross negligence.

“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to an-other, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”

…willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.

Here again, the court found the actions of the emcee in encouraging participants to dive into the mud pit might be found to be an intent to harm or an indifference.

Here, a reasonable jury might conclude that the act of encouraging participants to jump head-first into the mud pit despite knowing the risks, to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]”

Consequently, the court granted the motion to dismiss on the negligence claims and denied the motion to dismiss on the claims of gross negligence and wilful and wanton misconduct.

Again, this case probably is not over yet.

So Now What? 

Don’t give an injured participant the opportunity to sue you. Don’t dance with the possibility that your language you use instead of the word negligence will meet the requirements of the law.

JUST USE THE WORD NEGLIGENCE IN YOUR RELEASE!

Second, don’t allow anyone who is an employee or may appear to participants to be an employee to encourage people to take actions that might injure them or is contrary to the rules of your activity.

It seems to be common sense; however, in the heat of the activity or an unfounded belief the release is ironclad, people get excited and might encourage a participant to take risks they are not expected or ready for.

What do you think? Leave a comment.

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

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