Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton, Appellant, v. Nova River Runners, Inc., Appellee.

Supreme Court No. S-16422, No. 1669

Supreme Court of Alaska

2018 Alas. LEXIS 31

March 21, 2018, Decided

NOTICE: MEMORANDUM DECISIONS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT. SEE ALASKA APPELLATE GUIDELINES FOR PUBLICATION OF SUPREME COURT DECISIONS. ACCORDINGLY, THIS MEMORANDUM DECISION MAY NOT BE CITED FOR ANY PROPOSITION OF LAW, NOR AS AN EXAMPLE OF THE PROPER RESOLUTION OF ANY ISSUE.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Pamela Scott Washington, Judge pro tem. Superior Court No. 3AN-15-06866 CI.

CASE SUMMARY

OVERVIEW: HOLDINGS: [1]-A release entitled defendant rafting company to wrongful

COUNSEL: Mara E. Michaletz and David K. Gross, Birch Horton Bittner & Cherot, Anchorage, for Appellant.

Howard A. Lazar, Scott J. Gerlach, and Luba K. Bartnitskaia, Delaney Wiles, Inc., Anchorage, for Appellee.

JUDGES: Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. Winfree, Justice, with whom Carney, Justice, joins, dissenting.

OPINION

MEMORANDUM OPINION AND JUDGMENT*

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* Entered under Alaska Appellate Rule 214.

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I. INTRODUCTION

The estate of a man who drowned on a rafting trip challenged the validity of the pre-trip liability release. The superior court granted summary judgment in favor of the rafting company. Because there were no genuine issues of material fact and the release was effective under our precedent, we affirm.

II. FACTS AND PROCEEDINGS

In May 2013 Stephen Morton took part in a whitewater rafting trip on Six Mile Creek near Hope. The trip was conducted by NOVA River Runners (NOVA). This case arises out of Morton’s tragic death by drowning after his raft capsized.

A. The Release

Before embarking on a rafting trip, participants typically receive and sign [*2] NOVA’s liability release (the Release). The Release is provided as a single two-sided document. One side is entitled “Participant’s Acknowledgment of Risks” and begins with a definition of activities: “any adventure, sport or activity associated with the outdoors and/or wilderness and the use or presence of watercraft, including but not limited to kayaks, rafts, oar boats and glacier hiking and ice climbing equipment, including crampons, ski poles, climbing harnesses and associated ice climbing hardware.” The Release then states:

Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, we wish to remind you this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.

The Release then provides a list of “some, but not all” of the “inherent risks,” including “[m]y . . . ability to swim . . . and/or follow instructions” and “[l]oss of control of the craft, collision, capsizing, and sinking of the craft, which can result in wetness, injury, . . . and/or drowning.” The Release next asks participants to [*3] affirm that they possess certain qualifications, including physical capability and safety awareness. The last section of the first side purports to waive liability for the negligent acts of NOVA and its employees. There is no designated space for signatures or initials on this side.

At the top of the other side, participants are asked to acknowledge that “[They] have read, understood, and accepted the terms and conditions stated herein” and that the agreement “shall be binding upon [the participant] . . . and [their] estate.” No terms or conditions appear on this side. There are then three signature blocks where up to three participants can sign, with space to include an emergency contact, allergies, and medications.

Brad Cosgrove, NOVA’s “river manager” for this trip, did not recall whether Morton read the Release before signing it, but stated that “[n]obody was rushed into signing” and that he “physically showed each participant” both sides of the Release. Bernd Horsman, who rafted with Morton that day, stated that he recalled “sign[ing] a document that briefly stated that you waive any liability in case something happens” but thought the document only had one side. He did not recall [*4] “someone physically show[ing]” the Release to him, but he wasn’t rushed into signing it. Both Horsman’s and Morton’s signatures appear on the Release.

B. The Rafting Trip

The rafting trip consisted of three canyons. NOVA would routinely give participants the opportunity to disembark after the second canyon, because the third canyon is the most difficult. Morton did not choose to disembark after the second canyon, and his raft capsized in the third canyon. Cosgrove was able to pull him from the river and attempted to resuscitate him. NOVA contacted emergency services and delivered Morton for further care, but he died shortly thereafter.

C. Legal Proceedings

Morton’s widow, Vanessa Langlois, brought suit as the personal representative of Morton’s estate (the Estate) in May 2015 under AS 09.55.580 (wrongful death) and AS 09.55.570 (survival), requesting compensatory damages, plus costs, fees, and interest. The Estate alleged that NOVA was negligent and listed multiple theories primarily based on the employees’ actions or omissions.

NOVA moved for summary judgment in November 2015, arguing that the Release barred the Estate’s claims. NOVA supported its position with the signed Release and affidavits from NOVA’s owner [*5] and Cosgrove. The Estate opposed and filed a cross-motion for summary judgment to preclude NOVA from relying on the Release. The parties then stipulated to stay formal discovery until the court had ruled on these motions but agreed on procedures for conducting discovery in the interim if needed. Pursuant to the stipulation, the parties deposed Horsman and filed supplemental briefing.

In June 2016 the superior court granted NOVA’s motion for summary judgment and denied the Estate’s, reasoning that the Release was valid under our precedent. This appeal followed. The Estate argues that the superior court erred in granting summary judgment because the Release did not satisfy the six elements of our test for a valid waiver.

III. STANDARD OF REVIEW

“We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.”1 “If the record fails to reveal a genuine factual dispute and the moving party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.”2 “Questions of contract interpretation are questions of law that we review de novo . . . .”3

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1 Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014) (citing Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013)).2 Id. (citing Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)).3 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011) (citing Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n.1 (Alaska 2004)).

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IV. DISCUSSION

Alaska Statute 09.65.290 provides that “[a] person who [*6] participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for . . . death to the person . . . that results from the inherent risks in that sports or recreational activity.” The statute does not apply, however, to “a civil action based on the . . . negligence of a provider if the negligence was the proximate cause of the . . . death.”4 Thus, in order to avoid liability for negligence, recreational companies must supplement the statutory scheme by having participants release them from liability through waivers.

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4 AS 09.65.290(c).

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Extrapolating from principles articulated in three earlier cases,5 we recently adopted, in Donahue v. Ledgends, Inc., a six-element test for finding effective waiver:

(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated [*7] to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.6

The Estate argues that NOVA’s release does not satisfy this test. We analyze these six elements in turn and conclude that NOVA’s Release is effective.7

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5 See Donahue, 331 P.3d at 346-48 (discussing Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); and Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991)).6 Id. at 348. In Donahue, a woman sued a rock climbing gym after she broke her tibia by falling a few feet onto a mat at the instruction of an employee, and we concluded that the release barred her negligence claim. Id. at 344-45.7 Our review of the record reveals no genuine issues of material fact with respect to the existence and terms of the Release.

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A. The Release Specifically And Clearly Sets Forth The Risk Being Waived.

The Estate first argues that the Release was not a “conspicuous and unequivocal statement of the risk waived” because the Release was two-sided and the sides did not appear to incorporate each other.8 For support, the Estate cites an “analogous” Uniform Commercial Code (UCC) case from Florida for the proposition that “a disclaimer is likely inconspicuous where ‘there is nothing on the face of the writing to call attention to the back of the instrument.'”9 The Estate points out that the release in Donahue had two separate pages, and the participant initialed the first page and signed the second.10 The Estate also identifies Horsman’s confusion about whether the Release had one or two sides as evidence that the Release was not conspicuous, raising possible issues of material fact about whether Morton [*8] would have been aware of the other side or whether Cosgrove actually showed each participant both sides.11

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8 See Donahue, 331 P.3d at 348.9 The Estate quotes Rudy’s Glass Constr. Co. v. E. F. Johnson Co., 404 So. 2d 1087, 1089 (Fla. Dist. App. 1981) (citing Massey-Ferguson, Inc. v. Utley, 439 S.W.2d 57 (Ky. 1969); Hunt v. Perkins Mach. Co., 352 Mass. 535, 226 N.E.2d 228 (Mass. 1967)).10 See Donahue, 331 P.3d at 345.11 The Estate raises these arguments outside the context of Donahue, but we address them here.

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We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.12 We conclude that NOVA’s Release was sufficiently clear, even without an initial block on the first side. The signature page stated, “I have read, understood, and accepted the terms and conditions stated herein,” but no terms and conditions appeared on this side. A reasonable person, after reading the word “herein,” would be on notice that the document had another side.

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12 See Donahue, 331 P.3d at 349 (citing Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991)).

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The Estate also argues that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions.” But NOVA’s Release, like the release in Donahue, “clearly and repeatedly disclosed the risk of the specific injury at issue”13 — here, death by drowning. Like the plaintiff in Donahue, the Estate, “[r]ather than focusing on [the] injury[,] . . . focuses on its alleged cause,”14 i.e., negligent training or instruction. But the [*9] Release covers this risk as well; it indemnifies the “Releasees” in capital letters from liability for injury or death, “whether arising from negligence of the Releasees or otherwise,” and specifically defines “Releasees” to include “employees.” In Donahue, we also observed that “[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees.”15 Thus, the Estate’s argument that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised” is not persuasive.

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13 Id. at 348.14 Id. at 349.15 Id.

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B. The Release Uses The Word “Negligence.”

Donahue provides that “a waiver of negligence must be specifically set forth using the word ‘negligence.'”16 The Estate argues that the Release’s “references to negligence are inconsistent,” and therefore it does not fulfill our requirement that a release be “clear, explicit[,] and comprehensible in each of its essential details.”17 But we concluded in Donahue that similar language satisfied this element.

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16 Id. at 348.17 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991) (quoting Ferrell v. S. Nev. Off-Road Enthusiasts, Ltd., 147 Cal. App. 3d 309, 195 Cal. Rptr. 90, 95 (Cal. App. 1983)).

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The release in Donahue provided: “I hereby voluntarily release, forever discharge, and agree to [*10] indemnify and hold harmless the [defendant] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the defendant].”18 We emphasized that “[t]he phrase ‘any and all claims’ is thus expressly defined to include claims for negligence.”19

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18 Donahue, 331 P.3d at 345.19 Id. at 349.

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Here, the Release reads, in relevant part:

I . . . HEREBY RELEASE NOVA . . . WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss, or damage to persons or property incident to my involvement or participation in these programs, WHETHER ARISING FROM NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.

I . . . HEREBY INDEMNIFY AND HOLD HARMLESS all the above Releasees from any and all liabilities incident to my involvement or participation in these programs, EVEN IF ARISING FROM THEIR NEGLIGENCE to the fullest extent permitted by law.

NOVA’s Release uses the word “negligence” twice, and there is no material difference between the “any and all claims” language used in Donahue and the “any and all liabilities” language used here. We therefore conclude that the Release specifically set forth a waiver of negligence.

C. The Release Uses Simple Language And [*11] Emphasized Text.

Donahue provides that The intent of a release to waive liability for negligence “must be brought home to the releasor in clear, emphasized language.”20 The Estate argues that the Release fails to use clear language or adequately define the “activity” it covered and thus does not waive liability for negligence. This argument does not withstand the application of Donahue.

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20 Id. at 348.

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In Donahue, the clauses addressing negligence “[did] not appear to be ‘calculated to conceal'” and were “in a logical place where they [could not] be missed by someone who reads the release.”21 Here, the Release uses capital letters to highlight the clauses waiving negligence. Though the clauses fall near the bottom of the page, they were certainly “in a logical place where they [could not] be missed by someone who reads the release” from start to finish, and thus under Donahue they were not “calculated to conceal.” And though these clauses contain some legalese, ” releases should be read ‘as a whole’ in order to decide whether they ‘clearly notify the prospective releasor . . . of the effect of signing the agreement.'”22 The list of inherent risks uses very simple language: “cold weather,” “[m]y sense of balance,” [*12] “drowning,” “[a]ccidents or illnesses,” and “[f]atigue, chill and/or dizziness.”

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21 Id. at 350.22 Id. at 351 (quoting Kissick, 816 P.2d at 191).

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The Release extends to other activities such as “glacier hiking and ice climbing,” but any ambiguity is cleared up by the explicit list of inherent risks relating to whitewater rafting. We therefore conclude that the Release brings home to the reader its intent to waive liability for negligence using simple language and emphasized text.

D. The Release Does Not Violate Public Policy.

Donahue requires that “the release must not violate public policy.”23 Citing no legal authority, the Estate asserts that NOVA’s waiver “unquestionably violates public policy due to its vast scope.”

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23 Id. at 348.

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“Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities.”24 In evaluating public policy arguments in the context of liability waivers, we have previously considered “[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature [*13] of the service.”25 The type of service likely to inspire additional scrutiny on public policy grounds is “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.'”26 Using this analysis, we deemed an all-terrain vehicle safety course “not an essential service,” meaning that “the class providers did not have a ‘decisive advantage of bargaining strength’ in requiring the release for participation in the class.”27

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24 Id. at 348 n.34 (citing Kissick, 816 P.2d at 191).25 Moore v. Hartley Motors, Inc., 36 P.3d 628, 631 (Alaska 2001) (citing Municipality of Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986)).26 Id. (quoting Locker, 723 P.2d at 1265).27 Id. at 631-32 (citing Locker, 723 P.2d at 1265).

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Similarly, here, whitewater rafting, far from being a matter of practical necessity, is an optional activity, meaning that under Moore v. Hartley Motors, Inc., NOVA did not have an advantage in bargaining strength. We therefore conclude that the Release does not violate public policy.

E. The Release Suggests An Intent To Exculpate NOVA From Liability For Employee Negligence.

Donahue provides that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”28 But regardless of whether acts of negligence are related to inherent risks, this requirement is met when “the injury and its alleged causes are all expressly covered [*14] in the release.”29 The Estate argues that the Release does not suggest an intent to exculpate NOVA from liability for employee negligence. We disagree.

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28 Donahue, 331 P.3d at 348.29 Id. at 352.

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As we have explained, the Release specifically covered employee negligence by including “employees” in the clause releasing NOVA from liability for negligence. Because the injury — death by drowning — and its alleged cause — employee negligence — are expressly included in the Release, it satisfies this Donahue element.30

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30 We further observe that the Release’s list of inherent risks tracks some of the Estate’s allegations about employee negligence. For example, the Estate alleged that NOVA “fail[ed] to preclude those participants who were not qualified to handle the rafting trip,” but the Release discloses that a participant’s “ability to swim . . . and/or follow instructions” was an inherent risk of the trip.

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The Estate correctly notes that the Donahue release specifically covered the risk of “inadequate warnings or instructions” from employees, unlike the general reference to employee negligence here.31 Ideally NOVA’s Release would include a more detailed description of the types of negligence it covers, such as “employee negligence” and “negligent training.” But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.32

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31 Donahue, 331 P.3d at 352.32 We therefore do not reach the question whether employee negligence is unrelated to inherent risks of guided whitewater rafting. See id. at 348.

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F. The Release Does Not Represent Or Insinuate Standards Of Safety Or Maintenance.

Donahue provides that “the release agreement must not represent or insinuate standards of safety or maintenance.”33 The [*15] Estate argues that the Release violates this element with the following statement: “the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled.” But this statement is introduced by the word “[a]lthough” and falls within the same sentence as the disclosure that “this activity is not without risk.” This sentence is immediately followed by a sentence indicating that “[c]ertain risks cannot be eliminated without destroying the unique character of the activity.” And the Release goes on to list 11 risks inherent in whitewater rafting. Reading the Release as a whole, we cannot conclude that it represented or insinuated standards of safety or maintenance.

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33 Id.

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We noted that the release in Donahue “highlight[ed] the fallibility of [the defendant’s] employees, equipment, and facilities.”34 Here, though the Release does not — and was not required to under the Donahue elements — go that far, it does list as inherent risks “[l]oss of control of the craft” and “sinking of the craft,” raising the possibility of human error, fallible equipment, and adverse forces of nature. The Release also [*16] makes various references to the isolated, outdoor nature of the activity — listing “[c]hanging water flow,” “inclement weather,” and the “remote” location as inherent risks.

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34 Id. at 352.

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The Estate cites Ledgends, Inc. v. Kerr35 in support of its argument that the Release impermissibly both represents a standard of maintenance and tries to disclaim liability for failing to adhere to it. In Kerr, we concluded that a release that contained statements such as “[w]hile we try to make the [premises] safe” and “[w]hile we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition” was invalid because, read as a whole, it did “not conspicuously and unequivocally alert” participants of its scope.36 We went on to hold that “[t]he representations in the release regarding the [defendant]’s own efforts toward safety suggest that the release was predicated on a presumption that the [defendant] would strive to meet the standards of maintenance and safety mentioned in the release.”37

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35 91 P.3d 960 (Alaska 2004). Like Donahue, Kerr also arose out of an injury at an indoor rock climbing gym. Id. at 961.36 Id. at 963-64.37 Id. at 963.

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But the Release in question here is dissimilar in key ways. Compared to the release in Kerr, which contained language representing safety standards throughout,38 NOVA’s Release [*17] contains only a single half-sentence to that effect, adequately disclaimed: “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.” And the release in Kerr was much broader — promising to “try to make the [premises] safe” — than NOVA’s Release, which promises merely that the company takes “reasonable steps to provide . . . appropriate equipment and/or skilled guides” while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate’s reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.

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38 Id. at 963-64.

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Because it satisfies the six Donahue elements, the Release effectively waived NOVA’s liability for negligence.

V. CONCLUSION

For the reasons explained above, we AFFIRM the superior court’s grant of summary judgment in favor of NOVA.

DISSENT BY: WINFREE

DISSENT

WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.

I respectfully [*18] dissent from the court’s decision affirming summary judgment in this case. I cannot agree with the court’s conclusions that the self-titled “Participant’s Acknowledgement [sic] of Risks”1 form actually is something other than what it calls itself — i.e., a “Release” form — and that it constitutes a valid release barring the Morton estate’s claims against NOVA River Runners.2 I would reverse the superior court’s decision, hold that the purported release is not valid under our precedent, and remand for further proceedings.

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1 The document is referred to by its title throughout, but the spelling has been changed to conform to our preferred style.2 The Participant’s Acknowledgment of Risks form signed by Stephen Morton is Appendix A to this dissent.

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The court’s application of the six factors we approved in Donahue v. Ledgends, Inc.3 ignores our prior case law from which these factors derived. Most salient to the factual situation and document at issue here is Ledgends, Inc. v. Kerr, affirming a superior court decision denying summary judgment based on a release document — titled “Release of Liability — Waiver of Claims” — that was far clearer, and certainly not less clear, than the purported release in this case.4 And although our prior cases about recreational releases have not focused on a document’s title, a title alerts a reader to the document’s purpose. In each case from which the Donahue factors derived, the [*19] document’s title clearly told the signer that the document was a release or that the signer was waiving legal claims. The release in Donahue was titled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.”5 In Kerr the form was a “Release of Liability — Waiver of Claims.”6 The rider-safety school in Moore v. Hartley Motors, Inc. presented the participant a form that instructed “You Must Read and Sign This Consent Form and Release.”7 Only in Kissick v. Schmierer did the title of the document not contain the word “release,” but that form, provided by the U.S. Air Force, was a “Covenant Not to Sue and Indemnity Agreement”8 — a title giving notice that the signer was surrendering legal rights before participating in the activity. In contrast, an “Acknowledgment of Risks” in no way alerts a reader of the possibility of waiving all negligence related to an activity. A title indicating that a document will release or waive legal liability surely is a useful starting point for evaluating the validity of a recreational release.

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3 331 P.3d 342, 348 (Alaska 2014).4 91 P.3d 960, 961 (Alaska 2004). The release language in Kerr was included as an appendix to our opinion. Id. at 963-64. The rejected release from Kerr is Appendix B to this dissent for ease of comparison with the purported release in this case.5 331 P.3d at 344.6 91 P.3d at 961.7 36 P.3d 628, 632 (Alaska 2001).8 816 P.2d 188, 190 (Alaska 1991).

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Consistent with the principle that the purpose of contract interpretation is to give effect to the [*20] parties’ reasonable expectations,9 our prior cases require us to consider the agreement as a whole10 and to resolve “any ambiguities in pre-recreational exculpatory clauses . . . against the party seeking exculpation.”11 The agreement as a whole “must ‘clearly notify the prospective releasor or indemnitor of the effect of signing the release.'”12 Applying these directives to the Acknowledgment of Risks form, I conclude the document does not clearly apprise participants that they are surrendering all claims for negligence by NOVA, particularly claims based on inadequate training.

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9 See Peterson v. Wirum, 625 P.2d 866, 872 n.10 (Alaska 1981). A release is a type of contract. See Moore, 36 P.3d at 630-31.10 Kerr, 91 P.3d at 962.11 Id. at 961 (citing Kissick, 816 P.2d at 191).12 Id. at 962 (quoting Kissick, 816 P.2d at 191).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

As can be seen in Appendix A, the Acknowledgment of Risks form’s first indication that it might be anything more than what its title suggests appears approximately three-fourths of the way down a densely printed page that, up to that point, has mentioned only “inherent risks.” There the form asks participants for a self-evaluation of their abilities. After a line break, the form asks participants to certify that they are “fully capable of participating in these activities” and will “assume full responsibility for [themselves].” Then, without another line break or any heading to signify that the form is transitioning [*21] into a liability release rather than an acknowledgment of risks, the document sets out “release” language. While parts of this section are in capital letters, they are not in bold or otherwise set off from the dense text surrounding them. In short, considering the document as a whole, the apparent intent is to hide the release language at the very bottom of a dense, one-page document with a title completely unrelated to release of liability.

Additionally, the signature page in no way alerts the reader that operative release language is contained on another page, presumably the back side of that page. The short paragraph at the top, which the court relies on to hold that the form gave participants adequate notice of the release language, says only, “I have read, understood, and accepted the terms and conditions stated herein and acknowledge that this agreement shall be binding upon myself . . . .” While the court concludes that a reasonable person “would be on notice that the document had another side” solely because of the word “herein,” the court fails to explain its conclusion. In fact, Morton’s companion who was an experienced adventure traveler as well, Horsman, remembered the document [*22] consisting of only one page. As he put it, “[T]he way I read it is ‘conditions herein.’ Well, there’s not much herein . . . .”

In addition to the document’s overall structure, the Acknowledgment of Risks form fails to comply with several standards we previously have applied to recreational activity releases. Specifically, the mere inclusion of the word “negligence” in the release language is insufficient to make the Acknowledgment of Risks form a full release of all claims. The release we held invalid in Kerr also used the word “negligence,” but we agreed with the superior court that “[w]hen read as a whole” the purported release did “not clearly and unequivocally express an intent to release the Gym for liability for its own future negligence” with respect to all matters referenced in the release.13

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

13 Id. at 963.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The superior court’s Kerr decision, which we adopted and published as expressing our own view, highlighted the ineffectiveness of a release that did not “clearly alert climbers that they [were] giving up any claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicate[d] in the release that it [would] strive to achieve and upon which the release [*23] [might] have been predicated.”14 This is precisely what the Morton estate agues here: the Acknowledgment of Risks form promised participants that NOVA would provide adequately skilled guides but did not alert participants that they were giving up claims based on NOVA’s negligent failure to provide adequately skilled guides.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

14 Id.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

NOVA indicated in its Acknowledgment of Risks form that it had “taken reasonable steps to provide [a participant] with appropriate equipment and/or skilled guides so [the participant] can enjoy an activity for which [he] may not be skilled.” This is a representation that NOVA’s guides were adequately skilled to provide participants an enjoyable trip — not one fraught with danger.15 The Morton estate alleged in its complaint that NOVA’s guides were inadequately trained and did not properly screen participants to preclude those who were unable “to handle the rafting trip” from participating. Both specific allegations related to negligent training or failure to provide guides who were adequately skilled to assist unskilled participants to safely complete the trip. The Acknowledgment of Risks form, like the defective release in Kerr, can hardly be said to give a participants [*24] notice that the participants were surrendering claims related to negligent training or supervision.16

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

15 The release could be read as requiring NOVA to provide either “appropriate equipment” or “skilled guides” but not both. But a reasonable person with no skill in rafting would almost certainly infer that NOVA intended to provide both appropriate equipment and skilled guides on a trip with Class V rapids.16 See Kerr, 91 P.3d at 963 (holding that release did not bar negligent maintenance claim because release promised to “strive to achieve” safety standards).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The court concludes otherwise because the express statement that NOVA would provide skilled guides is in a sentence that also says rafting “is not without risk” and the Acknowledgment of Risks form then lists several inherent risks of rafting. But none of the listed risks is in any way related to unskilled guides or negligence in screening other participants.17 To the contrary, the enumerated risks focus on environmental and personal factors and include natural conditions, such as “[c]hanging water flow,” “presence of marine life,” and adverse weather; personal characteristics of the participant like “sense of balance, physical coordination, ability to swim, walk and/or follow instructions” and “[f]atigue, chill and/or dizziness, which may diminish [the participant’s] reaction time and increase the risk of accident”; and the risk of an accident “occurring in remote places where there are no available medical facilities.” The Acknowledgment of Risks form does not include — as the release in Donahue did — risks related to other participants’ “limits”18 or to employees’ “inadequate warnings [*25] or instructions” that might lead to injury.19 In other words, the Acknowledgment of Risks form did not meet the fourth characteristic of a valid release — it did not suggest an intent to release NOVA from liability for negligent acts unrelated to inherent risks.20

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

17 In contrast, the valid release we discussed in Donahue explicitly listed in the inherent risks of climbing several types of possible negligence: “improperly maintained equipment,” “displaced pads or safety equipment, belay or anchor or harness failure,” “the negligence of other climbers or spotters or visitors or participants who may be present,” “participants giving or following inappropriate ‘Beta’ or climbing advice or move sequences,” and “others’ failure to follow the rules of the [Rock Gym] . . . .” Donahue v. Ledgends, Inc., 331 P.3d 342, 350 n.46 (Alaska 2014) (alteration in original).18 Id.19 See id. at 352 (holding that release at issue “expressly covered” both the type of injury “and its alleged causes,” namely “‘inadequate warnings or instructions’ from Rock Gym instructors”).20 The court states that it “do[es] not reach the question of whether employee negligence is unrelated to inherent risks of guided whitewater rafting.” It is hard to see how negligent training or providing inadequately skilled guides would ever be related to an inherent risk of guided whitewater rafting.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

I also disagree with the court’s holding that a release is necessarily valid when it sets out the risk of a specific injury — death by drowning in this case — but not its specific cause — negligent training and the provision of unskilled guides. In Donahue we rejected the participant’s argument that the release did not specifically and clearly set out the risks being waived because the release not only warned of a risk of falling but also cautioned that instructors and other employees could, through their negligence, cause falls or other types of injury.21 Here the only mention of employee negligence, buried at the bottom of a densely written, single-spaced document, is a description only in the most general terms. This type of general waiver simply does not specifically and clearly set out a waiver of the risk on which the Morton estate’s claim is based. The Morton estate alleges that [*26] Morton’s death by drowning was not due solely to the inherent risks of whitewater rafting the release listed, but rather to the provision of unskilled guides who did not adequately screen other participants. The document’s general language fails to specifically and clearly set out the risk of negligence alleged here.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

21 Donahue, 331 P.3d at 348-49.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Today’s decision allows intentionally disguised pre-recreational activity exculpatory releases and effectively lowers the bar for their validity. Because the release does not meet the standards adopted in the precedent Donahue relied on — and because if the “Release” in Kerr was an invalid release, the “Participant’s Acknowledgment of Risks” Morton signed must be an invalid release — I respectfully dissent from the court’s opinion concluding otherwise.


Whitewater rafting case where one of the claims is the employer should have provided eye protecting during the rafting trip.

Plaintiff was injured during a corporate team building exercise when she ended up with a small rock in her eye after the whitewater rafting trip.

Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631

State: Florida, United States District Court for the Middle District of Florida, Tampa Division

Plaintiff: Carmen Elena Monteilh Chavarria

Defendant: Intergro, Inc., Timothy Dolan, Felix Renta

Plaintiff Claims: negligence, for intentional infliction of emotional distress, and for breach of contract

Defendant Defenses:

Holding: Mostly for the Defendants

Year: 2018

Summary

A whitewater rafting trip in Honduras booked as a team-building event ended up in litigation in the US. The allegations were the corporation that booked the team building for its employees failed to provide the necessary safety equipment for whitewater rafting.

The allegations may be taken to allege there is a higher duty owed to employees of a corporation partaking in a sport or recreation event then to other participants. The duty of the raft company appears to remain the same. Only employers are argued to have a requirement of higher standards of care.

Facts

Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. The plaintiff alleges that both Intergro and Seproma3 “conduct-ed” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”

After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye.

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

There were legal discussions about what law applied and other items that won’t be discussed here. It is unclear how a Honduran corporation, and a raft trip in Honduras ended up in a Florida Federal District Court.

The court was succinct in its analysis of the law and facts. The plaintiff argued the defendants were negligent.

To state a claim for negligence, a plaintiff must allege that the defendant owed the plain-tiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage.

According to the plaintiff, there was a duty of the employer, Integro not to select the rafting event and to: “provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.”

The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; that the breach caused her injury; and that she has suffered actual damages as a result of the defend-ants’ negligence. The plaintiff states a claim for negligence.

The next argument made by the plaintiff was a claim for intentional infliction of emotional distress.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. The standard for outrageous conduct is distinctly high

The court dismissed this claim finding the plaintiff failed to allege any instances of outrageous, extreme or atrocious conduct.

The plaintiff also sued for breach of contract. “To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach.”

The court dismissed the breach of contract claims against the individual defendants and granted the plaintiff’s motion to amend her complaint against the corporate defendant to clarify or restate her breach of contract claim.

So Now What?

Simple case, right? Well maybe. In the negligence complaint which survived the motion to dismiss, the plaintiff’s allegations stated:

The plaintiff alleges that both Intergro and Seproma “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”

Two issues surface here. The first is the allegation that white-water rafting requires you to have eye protection. However, the second has possibly greater results. The complaint of not providing enough safety gear is not against the raft company, but against the plaintiff’s employer who booked the trip. The allegation is the employer who booked the trip had a duty to provide proper gear for the trip.

This shifts the burden away from the people who understand the risks, rafting companies, to people who do not understand the risks, companies, churches, groups that book raft trips. Every raft company might be able to argue successfully, that the standards in the industry are to provide a PFD.

However, the company will have to rely on the industry standards of whitewater rafting (or any other sport or recreational activity) but then check to see if there is a higher standard of care owed to employees.

Here the plaintiff seemed to lose most of here employment law claims. The decision indicates she was denied worker’s compensation for her injuries. However, if the activity was argued to be part of her employment, then this may create a greater duty and a greater reluctance on the part of corporations to do team building events.

What do you think? Leave a comment.

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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.

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Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631

Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631

Carmen Elena Monteilh Chavarria, Plaintiff, v. Intergro, Inc., et al., Defendants.

CASE NO. 8:17-cv-2229-T-23AEP

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION

2018 U.S. Dist. LEXIS 117631

July 16, 2018, Decided

July 16, 2018, Filed

COUNSEL: [*1] For Carmen Elena Monteilh Chavarria, Plaintiff: Carlos A. Leyva, LEAD ATTORNEY, Digital Business Law Group, P.A., Palm Harbor, FL; Linda Susan McAleer, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Linda S. McAleer, San Diego, CA.

For Intergro, Inc., Timothy Dolan, Felix Renta, Defendants: Catherine M. DiPaolo, Richard M. Hanchett, LEAD ATTORNEYS, Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, Tampa, FL.

JUDGES: STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.

OPINION BY: STEVEN D. MERRYDAY

OPINION

ORDER

On September 25, 2017, the plaintiff sued (Doc. 1) the defendants for negligence, for intentional infliction of emotional distress, and for breach of contract. Asserting the same claims, the plaintiff amended (Doc. 15) her complaint on October 25, 2017. On November 8, 2017, the defendants moved (Doc. 19) to dismiss the amended complaint,1 and on April 28, 2018, the plaintiff moved (Doc. 39) — for the first time — for an order determining that Honduran law governs the claims in this action.2

1 “Defendants’ motion to dismiss amended complaint, alternative motion to strike certain allegations and the affidavit of attorney Carlos A. Leyva, and alternative notice of objection to testimony of Carlos A. Leyva.” (Doc. 19)

2 Also, the plaintiff moves “for partial summary judgment as to liability only, pursuant to [the] breach of contract claim.” (Doc. 43 at 1)

By failing to timely assert the claim, a party waives the application of foreign law. Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1257 (11th Cir. 2006); Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (holding that the plaintiff “explicitly submitted to Illinois [not Virginia] law and relied solely on it, and having done so, the district [*2] court was right to apply it to the dispute. . . . The principle of waiver is designed to prohibit this very type of gamesmanship — [the plaintiff] is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don’t go his way, ask for a mulligan under the laws of a different jurisdiction.”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995) (holding that choice of law is “normally waivable”); Anderson v. McAllister Towing and Transp. Co., 17 F. Supp. 2d 1280, 1286 n.6 (S.D. Ala. 1998) (Volmer, J.) (holding that the defendant waived the right to have Saudi Arabian law applied to a contractual dispute because the defendant failed to give reasonable notice of its intent to assert that foreign law applied). “The failure to give proper notice of the applicability of foreign law does not warrant dismissal . . . . It is more likely that a failure to give reasonable notice will result in a waiver of the applicability of foreign law to the case.” Moore’s Federal Practice, Vol. 9, § 44.1.03[3] (3d ed. 2016).

In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued [*3] and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.

BACKGROUND

Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. (Doc. 15 at 4) The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. (Doc. 15 at 4) The plaintiff alleges that both Intergro and Seproma3 “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.” (Doc. 15 at 5)

3 Seproma, a subsidiary of Intergro, is not a party to this action.

After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. (Doc. 15 at 6) Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two [*4] further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye. (Doc. 15 at 6)

DISCUSSION

Negligence

To state a claim for negligence, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). The plaintiff alleges that Integro owed her a duty “not to select” the rafting event in which she was injured and a duty to provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.” (Doc. 15 at 8) The defendants argue (1) that the plaintiff fails to allege sufficiently that the defendants knew that the rafting event posed an unreasonable risk of harm and (2) that, even if the plaintiff had alleged a duty of care owed by Intergro to the plaintiff, she fails to allege any individual duty owed by Dolan or Renta.

The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; [*5] that the breach caused her injury; and that she has suffered actual damages as a result of the defendants’ negligence. The plaintiff states a claim for negligence.

Intentional infliction of emotional distress

To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009) The standard for outrageous conduct is distinctly high. Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985) (“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). Whether a person’s alleged conduct is sufficiently outrageous or intolerable is a matter of law. De La Campa v. Grifols America, Inc., 819 So. 2d 940 (Fla. 3d DCA 2002).

The plaintiff alleges (1) that the “[d]efendants understood that their collective refusal to compensate Plaintiff for work related injurious activities, including lost wages and medical care, would cause emotional anxiety and distress to a single working mother of three children[]” (Doc. 15 at 7) and (2) that the defendants’ “intentional refusal to pay Plaintiff’s lost [*6] wages, medical expenses, and other benefits as required by Honduran law . . . caused Plaintiff emotional distress” (Doc. 15 at 9). The plaintiff fails to allege a single instance of “outrageous,” “extreme,” and “atrocious” conduct. Count II is dismissed for failing to state a claim.

Breach of contract

The plaintiff sues for breach of contract “pursuant to non-payment of employment termination benefits.” (Doc. 15 at 1) To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).

Intergro

The amended complaint fails to identify an unfulfilled contractual obligation. Instead, the plaintiff claims entitlement to payment of benefits under Honduran law but fails to identify the law or the benefits to which she is entitled. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is granted. In amending Count III to provide a more definite statement of the claim against Intergro for breach of contract, the plaintiff must clarify the allegation that “Intergro breached the Contract by failing to pay Plaintiff the benefits that were due under same pursuant to [*7] Honduran law.” (Doc. 15 at 10) Ambiguity exists as to whether Honduran law or the contract governs the obligation to pay, whether Honduran law or the contract governs the amount of the required payment, or to whether and to what extent Honduran law and the contract otherwise control the obligation to pay and the amount of the payment. The amended complaint must clarify the plaintiff’s claim in this respect, among others.

Dolan and Renta

The plaintiff fails to state a claim against either Dolan or Renta. In Count III, the plaintiff alleges that the plaintiff’s “employment with Intergro was controlled by a binding contract” and that Intergro breached the contract “by failing to pay Plaintiff the benefits that were due under same pursuant to Honduran law.” (Doc. 15 at 9-10) But in the prayer for relief, the plaintiff (who purportedly contracted only with Intergro) prays for judgment against all defendants “for the full amount of contractual benefits due under Honduran law.” (Doc. 15 at 10) The complaint lacks an allegation that Dolan and Renta are parties to the contract. Count III fails to state a claim against Dolan and Renta.

Motion to strike

The defendant moves (Doc. 19) under Rule 12(f), Federal Rules of Civil Procedure, to strike [*8] the allegations in paragraphs 7, 8, 14, 31, 32, 35, and 37 of the amended complaint and moves to strike the affidavit of Carlos A. Leyva (Doc. 15-1). Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “A motion to strike is a drastic remedy” and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962). “An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor relevant to the issues involved in the action. . . . ‘Scandalous’ generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Moore’s Federal Practice, Vol. 2, s 12.37[3] (3d ed. 2016). The defendant fails to identify and describe why the allegations are immaterial, irrelevant, and scandalous, and the plaintiff argues plausibly that the allegations are “related” to the controversy, are material, and are pertinent.

The defendant argues that Carlos Leyva’s affidavit contains allegations that have “no relation to [*9] this controversy and cause prejudice to Defendants because they are inadmissible hearsay.” (Doc. 19 at 12) The plaintiff responds that the “[d]efendants . . . conflate what is required for summary judgment with what is required in the pleadings. . . . The evidentiary burden that Defendants assume . . . does not exist at this stage in the proceedings.” (Doc. 21 at 16) For the reasons stated by the plaintiff, the defendants’ motion to strike Carlos Leyva’s affidavit is denied.

CONCLUSION

The defendant’s motion (Doc. 19) to dismiss is GRANTED IN PART. Count II is DISMISSED. Count III is DISMISSED against Dolan and Renta. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is GRANTED. The plaintiff must amend Count III to provide a more definite statement of the claim against Intergro for breach of contract.

The defendant’s “alternative motion [Doc. 19] to strike certain allegations and to strike the affidavit of attorney Carlos A. Leyva” is DENIED. The plaintiff’s motion (Doc. 39) for “choice of law” is DENIED. The plaintiff’s motion (Doc. 43) for partial summary judgment on Count III is DENIED.

No later than JULY 27, 2018, the plaintiff must amend the complaint [*10] to comply with this order4 The plaintiff must add no new claim.

4 That is, the plaintiff must (1) remove the claims for intentional infliction of emotional distress and (2) remove the claims against Dolan and Renta for breach of contract. Also, the plaintiff must amend Count III to provide a more definite statement of the claim against Integro for breach of contract.

ORDERED in Tampa, Florida, on July 16, 2018.

/s/ Steven D. Merryday

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE


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


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Whitewater rafting release upheld by the Alaska Supreme Court.

Language in the release stated the defendant would and had done their best to keep people adequate… that language almost voided the release. Don’t put in a release information that can be used against you!

Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

State: Alaska, Supreme Court of Alaska

Plaintiff: Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton

Defendant: Nova River Runners, Inc.

Plaintiff Claims: Wrongful Death and multiple theories of Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

The deceased died whitewater rafting. Alaska has a six-prong test to determine if a release is valid. Here, the plaintiff argued the release in question failed on every point.

The Alaskan Supreme Court disagreed; however, on a few of the issues, the court struggled to have this release meet the requirements needed.

Facts

The defendant operated whitewater raft trips on Six Mile Creek near Hope, Alaska. The deceased signed a release prior to going rafting. No one could remember if the deceased read both sides of the release, however, ample time was given so the release could have been read.

The release is a 2-sided document. One side is labeled Participants Acknowledgment of Risk. The other side is where the participants acknowledge they have read the release.

The raft trip consists of three canyons. After the first two canyons, the participants are given an opportunity to get off the trip because the third canyon is the hardest. The deceased did not leave the trip. Sometime in the canyon is raft capsized, and the decedent died.

The spouse of the deceased brought his lawsuit on her behalf and as the executor (personal representative) of the estate. The trial court dismissed the plaintiff’s claims after the defendant filed a motion for summary judgment based on the release signed by the deceased. The plaintiff appealed.

The decision was heard by the Alaska Supreme Court. Alaska does not have an intermediate appellate court so appeals from the trial court go to the Supreme Court.

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

Alaska has a statute, Alaska Statute 09.65.290, that protects recreational defendants from liability from the inherent risks of the activity. The court recognized the statute is weak and stated that business in Alaska must supplement their protection by using a release.

The Alaska Supreme Court decided one prior decision concerning releases Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153, See Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK. The court relied on its prior decision in Donahue to support its decision here.

In Donahue, the court created a six-part test to test the validity of a release.

…(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.

The plaintiff argued the release in this case did not satisfy the requirements set forth in Donahue.

The first argument was the release was not conspicuous and unequivocal because the release was two sided, and the sides did not appear to incorporate or be connected to each other.

The court did not agree with the argument because whether or not it was two different documents and whether or not the deceased read both sides was irrelevant because he signed the document. “We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.

The next argument was different.

The Estate also argues that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions.”

The court found that the language in the release was broad enough to cover this claim.

However, the Release covers this risk as well; it indemnifies the “Releasees” in capital letters from liability for injury or death, “whether arising from negligence of the Releasees or otherwise,” and specifically defines “Releasees” to include “employees.”

The court also found that in Donahue,

…we also observed that “[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees.”

The plaintiffs then argued that a release must use the word negligence in it. This is a requirement of many states. Here, however, the argument failed because the release did use the term negligence, several times. The plaintiff’s argued that each time the word negligence was used, it was used in a way that was different from the prior ways so the release was not clear and explicit.

Next the plaintiff’s argued the language was not clear and did not adequately define the activity. The court found this release used capital letters to highlight the clauses waiving negligence, and the negligence clause was not concealed from view.

The clause contained some legalese; however, releases should be read “as a whole” to determine whether or not the language in the release “clearly notify the prospective releasor of the effect of signing the agreement.”

The release was a general release in that it also included release language for glacier hiking and ice climbing. However, the inherent risks outlined in the release were the risks of whitewater rafting. With that risk language, the court found the reader would know they were signing a release.

Based on that language it is obvious the release would fail for ice climbing and glacier hiking?

The plaintiff’s argued the release violated public policy. However, the court outlined Alaska’s definition of public policy in relation to recreation activities.

In evaluating public policy arguments in the context of liability waivers, we have previously considered “[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature of the service.”25 The type of service likely to inspire additional scrutiny on public policy grounds is “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

A release for recreational activities does not violate public policy in Alaska.

The plaintiffs also argued the “release suggests an intent to exculpate nova from liability for employee negligence.

The court said, yes it does and that is OK. However, the court also specifically identified weaknesses in the release in this area. However, the weaknesses were not enough to void the release.

Ideally NOVA’s Release would include a more detailed description of the types of negligence it covers, such as “employee negligence” and “negligent training.” But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.

The plaintiffs also argued the defendants violated their own requirements set forth in the release. The release stated:

“…the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled.”

The court worked around this stating the language before and after this [stupid] section defined the risks of the activity, which should have shown the deceased that no matter what steps taken, there were still risks. The court stated, read as a whole, the release outlined numerous risks of whitewater rafting.

The plaintiff argued a case out of Florida, which also had numerous safety standards the defendant promised to meet and had not, should be controlling here. The court had been struggling through four paragraphs eventually concluded.

NOVA’s Release contains only a single half-sentence, to that effect, adequately disclaimed: “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.” And the release in Kerr was much broader — promising to “try to make the [premises] safe” — than NOVA’s Release, which promises merely that the company takes “reasonable steps to provide . . . appropriate equipment and/or skilled guides” while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate’s reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.

The court found the release met all the six requirements needed in Alaska to be a release and upheld the trial court’s dismissal of the plaintiff’s claims.

So Now What?

If your release, and I hope, it does, covers more than one page, make sure the pages connect or relate to each other. First, if on just one piece of paper, at the bottom of each page put in the footer, “Please Read Other Side.” If the release is more than two pages, besides the admonition to read the other side include page numbers on the document.

Write the document so it flows. You don’t have to have a heading at the top of each page. The two different headings in this case raised the argument it was two separate and unrelated documents. If the document were two different documents, then the first page should have had a signature line also, which is what the plaintiff argued. With no signature line, the first page of the document was a separate document and could not be held against the deceased.

If the writing flows, the paragraph or idea continues on the next page, then this would have been a non-issue.

Next you have to write your release to cover not only could happen but will happen, and it is all tied back to your employees. Always protect your employees and write the release broadly so it covers all the possible actions or acts an employee could take that may lead to a claim.

Never create in your release in a way for the plaintiff to sue you. Never make promises, never say you operate at a level, never say you use the best or even adequate anything. That language in this release almost was enough to defeat the release, and it was obvious the court struggled to find a very weak argument to beat this part of the plaintiff’s claims.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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Colorado River Outfitters Act

COLORADO REVISED STATUTES

TITLE 33. PARKS AND WILDLIFE

OUTDOOR RECREATION

ARTICLE 32. RIVER OUTFITTERS

33-32-101. Legislative declaration.. 1

33-32-102. Definitions. 2

33-32-103. Powers and duties of the commission – rules. 3

33-32-103.5. Variances. 3

33-32-104. License required – fee. 3

33-32-105. Minimum qualifications and conditions for a river outfitter’s license. 4

33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors. 4

33-32-106. Equipment required – employees required to meet minimum qualifications. 5

33-32-107. River outfitters – prohibited operations – penalties. 5

33-32-108. Enforcement 6

33-32-109. Denial, suspension, or revocation of license – disciplinary actions. 8

33-32-110. Advisory committee – repeal 9

33-32-111. Fees – river outfitters cash fund. 9

33-32-112. Repeal of article. 9

C.R.S. 33-32-101 (2015)

33-32-101. Legislative declaration

The general assembly declares that it is the policy of this state to promote and encourage residents and nonresidents alike to participate in the enjoyment and use of the rivers of this state and, to that end, in the exercise of the police powers of this state for the purpose of safeguarding the health, safety, welfare, and freedom from injury or danger of such residents and nonresidents, to license and regulate those persons who provide river-running services in the nature of equipment or personal services to such residents and nonresidents for the purpose of floating on rivers in this state unless the provider of such river-running services is providing such river-running services exclusively for family or friends. It is not the intent of the general assembly to interfere in any way with private land owner rights along rivers or to prevent the owners of whitewater equipment from using said equipment to accommodate friends when no consideration is involved; nor is it the intent of the general assembly to interfere in any way with the general public’s ability to enjoy the recreational value of state rivers when the services of river outfitters are not utilized or to interfere with the right of the United States to manage public lands and waters under its control. The general assembly recognizes that river outfitters, as an established business on rivers flowing within and without this state, make a significant contribution to the economy of this state and that the number of residents and nonresidents who are participating in river-running is steadily increasing.

HISTORY: Source: L. 84: Entire article added, p. 928, § 1, effective May 9.L. 88: Entire section amended, p. 1169, § 1, effective October 1.L. 94: Entire section amended, p. 1226, § 1, effective, July 1.

33-32-102. Definitions

As used in this article, unless the context otherwise requires:

(1) “Advertise” or “advertisement” means any message in any printed materials or electronic media used in the marketing and messaging of river outfitter operations.

(1.4) and (2) Repealed.

(3) “Guide” means any individual, including but not limited to subcontractors, employed for compensation by any river outfitter for the purpose of operating vessels.

(4) “Guide instructor” means any qualified guide whose job responsibilities include the training of guides.

(5) “Person” means any individual, sole proprietorship, partnership, corporation, nonprofit corporation or organization as defined in section 13-21-115.5 (3), C.R.S., limited liability company, firm, association, or other legal entity either located within or outside of this state.

(5.5) (a) “Regulated trip” means any river trip for which river-running services are provided which has been the subject of an advertisement or for which a fee has been charged regardless of whether such fee is:

(I) Charged exclusively for the river trip or as part of a packaged trip, recreational excursion, or camp; or

(II) Calculated to monetarily profit the river outfitter or is calculated merely to offset some or all of the actual costs of the river trip.

(b) “Regulated trip” does not include a trip in which a person is providing river-running services exclusively for family or friends as part of a social gathering of such family or friends.

(6) “River outfitter” means any person advertising to provide or providing river-running services in the nature of facilities, guide services, or transportation for the purpose of river-running; except that “river outfitter” does not include any person whose only service is providing motor vehicles, vessels, and other equipment for rent, any person whose only service is providing instruction in canoeing or kayaking skills, or any person who is providing river-running services exclusively for family or friends.

(7) “Trip leader” means any guide whose job responsibilities include being placed in charge of a river trip.

(8) “Vessel” means every description of watercraft used or capable of being used as a means of transportation of persons and property on the water, other than single-chambered air-inflated devices or seaplanes.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) amended, (4) and (5) R&RE, and (6) to (8) added, pp. 1169, 1170, § § 2, 3, effective October 1.L. 94: (1), (5), and (6) amended and (1.4) and (5.5) added, p. 1227, § 2, effective July 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1641, § 4, effective August 11.L. 2012: (1.4) and (2) repealed, (HB 12-1317), ch. 248, p. 1229, § 70, effective June 4.

33-32-103. Powers and duties of the commission – rules

The commission shall promulgate rules to govern the licensing of river outfitters, to regulate river outfitters, guides, trip leaders, and guide instructors, to ensure the safety of associated river-running activities, to establish guidelines to enable a river outfitter, guide, or trip leader to make a determination that the condition of the river constitutes a hazard to the life and safety of certain persons, and to carry out the purposes of this article. The commission may promulgate rules specifically outlining the procedures to be followed by the commission and by the enforcement section of the division in the event of a death or serious injury during a regulated trip. The commission shall e-mail a notice of every proposed rule to each licensee. The commission shall adopt rules regarding notification to outfitters of certain division personnel changes within ten days of the change and safety training standards and customer and outfitter interaction training standards for division rangers who monitor regulated trips.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section amended, p. 1170, § 4, effective October 1.L. 94: Entire section amended, p. 1228, § 3, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1641, § 5, effective August 11.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 71, effective June 4.

33-32-103.5. Variances

The director may grant variances from rules adopted by the commission pursuant to section 33-32-103 to any river outfitter on a case-by-case basis if the director determines that the health, safety, and welfare of the general public will not be endangered by the issuance of such variance.

HISTORY: Source: L. 94: Entire section added, p. 1228, § 4, effective July 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 72, effective June 4.

33-32-104. License required – fee

(1) No person shall act in the capacity of a paid river outfitter or advertise or represent himself or herself as a river outfitter in this state without first obtaining a river outfitter’s license in accordance with rules prescribed by the commission.

(2) An applicant for a river outfitter’s license shall meet the minimum qualifications pursuant to section 33-32-105 and shall apply on a form prescribed by the commission. All applicants shall pay a nonrefundable license fee in an amount determined by the commission, which fee shall be adequate to cover the expenses incurred for inspections, licensing, and enforcement required by this article, and shall renew such license pursuant to a schedule adopted by the commission upon payment of the fee. License terms shall not exceed three years. The commission may offer licenses that differ in the length of their terms and may stagger the length of license terms so that approximately equal numbers of licensees renew their licenses each year.

(3) Every river outfitter’s license shall, at all times, be conspicuously placed on the premises set forth in the license.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) added, p. 1170, § 5, effective October 1.L. 2010: (1) and (2) amended, (HB 10-1221), ch. 353, p. 1641, § 6, effective August 11.L. 2012: (1) and (2) amended, (HB 12-1317), ch. 248, p. 1230, § 73, effective June 4.

33-32-105. Minimum qualifications and conditions for a river outfitter’s license

(1) A river outfitter’s license may be granted to any river outfitter, either within or without this state, meeting the following minimum qualifications and conditions:

(a) The river outfitter, if a corporation, shall be incorporated pursuant to the laws of this state or duly qualified to do business in this state.

(b) The river outfitter shall submit to the commission evidence of liability insurance in the minimum amount of three hundred thousand dollars’ combined single limit for property damage and bodily injury.

(c) The river outfitter shall meet the safety standards for river-running established by the commission by regulation.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section R&RE, p. 1170, § 6, effective October 1.L. 2012: (1)(b) and (1)(c) amended, (HB 12-1317), ch. 248, p. 1230, § 74, effective June 4.

33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors

(1) Individuals providing the services of guides, trip leaders, or guide instructors shall have the following minimum qualifications and such additional qualifications as the commission may establish by rule:

(a) Guides shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have fifty hours of training on the river as a guide from a qualified guide instructor.

(b) Trip leaders shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least five hundred river miles, of which at least two hundred fifty river miles shall have been logged while acting as a qualified guide and no more than two hundred fifty river miles shall have been logged while acting as a guide on nonregulated trips. Miles from nonregulated trips shall be documented and signed by the trip leader under penalty of perjury, and the licensee shall retain the documents during the term of the trip leader’s employment.

(c) Guide instructors shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least fifteen hundred river miles, of which at least seven hundred fifty river miles shall have been logged while acting as a qualified guide.

(2) (Deleted by amendment, L. 2010, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11, 2010.)

HISTORY: Source: L. 88: Entire section added, p. 1171, § 7, effective October 1.L. 94: Entire section amended, p. 1228, § 5, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11.L. 2012: IP(1) amended, (HB 12-1317), ch. 248, p. 1230, § 75, effective June 4.

33-32-106. Equipment required – employees required to meet minimum qualifications

(1) All licensed river outfitters shall provide the river-outfitting equipment required by rules promulgated by the commission, and said equipment shall be in a serviceable condition for its operation as required by the rules promulgated by the commission.

(2) All river outfitters who employ or contract with guides, trip leaders, or guide instructors shall employ or contract only with such individuals who meet the qualifications provided in section 33-32-105.5 (1) and provided by those rules promulgated by the commission.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 88: Entire section amended, p. 1171, § 8, effective October 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1230, § 76, effective June 4.

33-32-107. River outfitters – prohibited operations – penalties

(1) (a) No river outfitter shall operate a river-outfitting business without a valid license as prescribed by section 33-32-104 or without insurance as provided in section 33-32-105 (1) (b). Any river outfitter that violates this paragraph (a):

(I) Commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.;

(II) Is liable for an administrative penalty of five times the annual licensing fee established pursuant to section 33-32-104 (2).

(b) If the river outfitter is a corporation, violation of this subsection (1) shall result in the officers of said corporation jointly and severally committing a class 2 misdemeanor, and said officers shall be punished as provided in section 18-1.3-501, C.R.S.

(2) It is unlawful for any river outfitter, guide, trip leader, or guide instructor to:

(a) Violate the safety equipment provisions of section 33-13-106. Any person who violates the provisions of this paragraph (a) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars; except that any person who fails to have one personal flotation device for each person on board as required by section 33-13-106 (3) (a) commits a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(b) Operate a vessel in a careless or imprudent manner without due regard for river conditions or other attending circumstances, or in such a manner as to endanger any person, property, or wildlife. Any person who violates the provisions of this paragraph (b) is guilty of a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(c) Operate a vessel with wanton or willful disregard for the safety of persons or property. Any person who violates the provisions of this paragraph (c) is guilty of a class 2 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(3) (Deleted by amendment, L. 94, p. 1229, § 6, effective July 1, 1994.)

(4) (a) No river outfitter or guide shall operate or maintain physical control of or allow any other person to operate or maintain physical control of a vessel on a regulated trip if such river outfitter, guide, or person is under the influence of alcohol or any controlled substance or any combination thereof, as specified in section 33-13-108.1.

(b) Any person who violates this subsection (4) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9; (2)(a) amended, p. 1125, § 46, effective June 7.L. 88: (1), IP(2), and (3) amended, p. 1171, § 9, effective October 1.L. 94: (3) amended and (4) added, p. 1229, § 6, effective July 1.L. 97: (2)(a) amended, p. 1607, § 7, effective June 4.L. 2002: (1), (2), and (4)(b) amended, p. 1545, § 299, effective October 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1642, § 8, effective August 11.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (1), (2), and (4)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For comment, “The Public Trust Doctrine — A Tool for Expanding Recreational Rafting Rights in Colorado”, see 57 U. Colo. L. Rev. 625 (1986).

33-32-108. Enforcement

(1) (a) Every peace officer, as defined in this section, has the authority to enforce the provisions of this article and in the exercise of such authority is authorized to stop and board any vessel.

(b) As used in this section, “peace officer” means any division of parks and wildlife officer or any sheriff or city and county law enforcement officer certified by the peace officers standards and training board pursuant to part 3 of article 31 of title 24, C.R.S.

(2) (a) Any actual expenses incurred by a governmental entity for search and rescue efforts stemming from any river running activity conducted for consideration by a river outfitter pursuant to the provisions of this article shall be reimbursed by said river outfitter. Such expenses shall include but not be limited to hours worked, fuel, a reasonable fee for use of equipment, and equipment repair or replacement costs, if any.

(b) Pursuant to paragraph (a) of this subsection (2), any expenses incurred by governmental entities stemming from search and rescue efforts that are reimbursed by a river outfitter shall be distributed as follows:

(I) If to local law enforcement agencies, on a pro rata basis in proportion to the amount of assistance rendered thereby;

(II) If to the division of parks and wildlife, one-half of the moneys shall be credited to the parks and outdoor recreation cash fund, created in section 33-10-111, and one-half shall be credited to the wildlife cash fund, created in section 33-1-112.

(III) (Deleted by amendment, L. 2011, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1, 2011.)

(3) (a) (I) If an authorized representative of the division conducts an inspection or investigation and determines that any provision of this article or any regulation promulgated pursuant to this article has been violated and that such violation creates or may create an emergency condition which may have a significant adverse effect on the health, safety, or welfare of any person, then such authorized representative shall immediately issue an order to the violating party to cease and desist the violating activity.

(II) Any order issued pursuant to this paragraph (a) shall set forth:

(A) The section of this article or the regulation promulgated pursuant to this article allegedly violated;

(B) The factual basis for the allegation of a violation; and

(C) A mandate that all violating activities cease immediately.

(III) (A) The recipient of any cease and desist order issued pursuant to this paragraph (a) may request a hearing to determine whether a violation of this article or of any regulation promulgated pursuant to this article has actually occurred if such request is made in writing within thirty days after the date of the service of the cease and desist order.

(B) Any hearing conducted pursuant to this subparagraph (III) shall be in accordance with article 4 of title 24, C.R.S.

(b) If a person fails to comply with a cease and desist order issued pursuant to paragraph (a) of this subsection (3), the director may request the attorney general or the district attorney for the judicial district in which the alleged violation occurred to bring an action for a temporary restraining order and for injunctive relief to enforce such cease and desist order.

(c) No stay of a cease and desist order may be issued until a hearing at which all parties are present has been held.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 94: Entire section amended, p. 1229, § 7, effective July 1.L. 2011: (1)(b), IP(2)(b), (2)(b)(II), and (2)(b)(III) amended, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1.L. 2012: (1)(b) amended, (HB 12-1283), ch. 240, p. 1136, § 54, effective July 1.

Cross references: For the legislative declaration in the 2012 act amending subsection (1)(b), see section 1 of chapter 240, Session Laws of Colorado 2012.

33-32-109. Denial, suspension, or revocation of license – disciplinary actions

(1) The commission may deny, suspend, or revoke a river outfitter license, place a licensed river outfitter on probation, or issue a letter of admonition to a licensed river outfitter if the applicant or holder:

(a) Violates section 33-32-105 or 33-32-106 or uses fraud, misrepresentation, or deceit in applying for or attempting to apply for licensure;

(b) Unlawfully acts as a river outfitter if such violation results in a conviction;

(c) Advertises as a river outfitter in this state without first obtaining a river outfitter license;

(d) Violates any provision of law regulating the practice of river outfitting in another jurisdiction if such violation resulted in disciplinary action against the applicant or holder. Evidence of such disciplinary action shall be prima facie evidence for the possible denial of a license or other disciplinary action in this state if the violation resulting in the disciplinary action in such other jurisdiction would be grounds for disciplinary action in this state.

(e) Violates section 18-4-503 or 18-4-504, C.R.S., resulting in two or more second or third degree criminal trespass convictions within any three- to five-year period while acting as a river outfitter or guide; except that the commission shall be governed by section 24-5-101, C.R.S., when considering any such conviction;

(f) Violates section 33-32-105.5 (1) by employing any person as a guide who fails to meet the requirements of such section; or

(g) Violates any order of the division or commission or any other provision of this article or any rules promulgated under this article.

(2) A plea of nolo contendere or a deferred prosecution shall be considered a violation for the purposes of this section.

(3) (a) Any proceeding to deny, suspend, or revoke a license granted under this article or to place a licensee on probation shall be pursuant to sections 24-4-104 and 24-4-105, C.R.S. Such proceeding may be conducted by an administrative law judge designated pursuant to part 10 of article 30 of title 24, C.R.S.

(b) Any proceeding conducted pursuant to this subsection (3) shall be deemed final for purposes of judicial review. Any appeal of any such proceeding shall be made to the court of appeals pursuant to section 24-4-106 (11), C.R.S.

(4) The commission may deny an application for a river outfitter license or a renewal of a river outfitter’s license if the applicant does not meet the requirements specified in section 33-32-105 or 33-32-106.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 1172, § 10, effective October 1.L. 94: Entire section amended, p. 1230, § 8, effective July 1.L. 2012: IP(1), (1)(e), (1)(g), and (4) amended, (HB 12-1317), ch. 248, p. 1231, § 77, effective June 4.

33-32-110. Advisory committee – repeal

(1) The commission shall appoint a river outfitter advisory committee, consisting of two river outfitters and one representative of the division. The committee shall review and make recommendations concerning rules promulgated and proposed pursuant to this article.

(2) (a) This section is repealed, effective July 1, 2019.

(b) Prior to its repeal, the advisory committee shall be reviewed as provided for in section 2-3-1203, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 86: Entire section amended, p. 423, § 54, effective March 26.L. 88: (2)(a) amended, p. 1172, § 11, effective October 1.L. 89: Entire section repealed, p. 1147, § 3, effective April 6.L. 94: Entire section RC&RE, p. 1232, § 9, effective July 1.L. 2000: Entire section repealed, p. 185, § 2, effective July 1.L. 2010: Entire section RC&RE, (HB 10-1221), ch. 353, p. 1643, § 9, effective August 11.L. 2012: (1) amended, (HB 12-1317), ch. 248, p. 1231, § 78, effective June 4.

33-32-111. Fees – river outfitters cash fund

All fees collected under this article shall be transmitted to the state treasurer who shall credit the same to the river outfitters cash fund, which fund is hereby created. The general assembly shall make annual appropriations from such fund for the direct and indirect costs of administration of this article.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 94: Entire section amended, p. 1232, § 10, effective July 1.

33-32-112. Repeal of article

This article and the licensing function of the division are repealed, effective September 1, 2019. Prior to such termination, the licensing function shall be reviewed as provided for in section 24-34-104, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 931, § 20, effective April 28; entire section amended p. 1172, § 12, effective October 1.L. 94: Entire section amended, p. 1232, § 11, effective July 1.L. 2004: Entire section amended, p. 297, § 3, effective August 4.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1640, § 3, effective August 11.

Editor’s note: Amendments to this section by House Bill 88-1036 and House Bill 88-1138 were harmonized.


Poorly written release and allegation of duress push whitewater rafting ligation to Pennsylvania Appellate court.

Release probably not written by an attorney, signed in one state for rafting in another state and probably one where the economics suggest an insurance company is playing plaintiff.

Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

State: Pennsylvania

Plaintiff: Erin Mcdonald

Defendant: Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc.

Plaintiff Claims: a. Failing to provide a river guide / instructor in plaintiff’s boat;

b. Failing to provide a properly inflated raft;

c. Failing to advise Plaintiff on the grade and / or class of the whitewater rapids;

d. Failing to properly instruct Plaintiff on how to safely and effectively maneuver fast and difficult rapids; and

e. Allowing an unsafe number of inexperienced rafters to operate a raft.

Defendant Defenses: Release

Holding: For Defendants

Year: 2015

The plaintiff was a teacher at a school that brought 72 kids whitewater rafting with the defendant on the Lehigh River. The school was located, and the plaintiff lived in New York. The defendant was located and the Lehigh River, where the rafting occurred, was in Pennsylvania.

While still at work two days before the trip her supervisor handed a release which she signed. The release had a venue clause which means any lawsuit must be in Pennsylvania but not a jurisdiction clause.

While rafting the plaintiff’s boat struck a rock ejecting the plaintiff from the raft which injured her.

The plaintiff and defendant filed various motions prior to trial. The plaintiff wanted New York law to apply because she had signed the release in New York and was from New York. (The plaintiff wanted the suit brought under New York law because New York does not recognize releases. See States that do not Support the Use of a Release.) The defendant wanted Pennsylvania law to apply, which generally upholds releases.

The court ruled against both parties and denied the release because the plaintiff made an allegation that she was forced to sign the release (duress) therefore, the release should be void. The trial court approved a motion to appeal these issues prior to trial and the appellate court accepted the appeal.

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

The plaintiff started her argument with three theories on the location where the release was signed was the proper jurisdiction for interpreting the law, New York.  

The plaintiff also argued that because the defendant did not have a jurisdiction clause in its release, then obviously the defendant wanted New York law to apply.

Finally, she argued that because her medical bills and treatment would be generated and done in New York that law should apply.

She maintains that because she signed the release in New York, the contract was formed in New York. As a New York resident, McDonald asserts she is entitled to the benefit of New York law. McDonald claims that if Whitewater intended for Pennsylvania law to apply, then it should have included such a clause in its release. She points out that most of her medical treatment occurred in New York and that the New York State Insurance Fund has an interest in recouping her lost wages and medical expenses.

The court started its examination of the law to be applied by first looking at whether tort law or contract law applied. Tort law is the law of injuries and has different requirements to prove jurisdictional issues than contract law, which is what a release is. The court found that contract law applied without much analysis on how it came to that decision.

The court then looked at how a conflict of law’s decision was to be made by the courts when deciding in a contract basis where the contract is silent on the issue of jurisdiction.

…the first step in a choice of law analysis under Pennsylvania law is to determine whether [an actual] conflict exists between the laws of the competing states. If no [actual] conflict exists, further analysis is unnecessary. An actual conflict exists if “there are relevant differences between the laws.

The analysis of what law applies; New York or Pennsylvania is extensive. If only one state would be harmed (the interests of the party from that state), then the issue is a false conflict. If the interests of both states would be harmed (the residents of both states would be harmed) by the decision, then the issue is a true conflict issue. “In such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.”

A third situation would exist if the parties of neither state would be harmed. This is called a “neither jurisdiction” issue. This occurs when the law of both states is identical.

In sum, in Pennsylvania, a conflict-of-law analysis not involving a statutory or contractual choice of law clause, first requires determining whether the laws in question actually conflict. If relevant differences between the laws exist, then we next classify the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for conflict.”

Instantly, a New York statute voids clauses immunizing recreational facilities from liability for negligence because they violate New York’s public policy. Pennsylvania, however, recognizes the validity of such exculpatory clauses when they govern voluntary and hazardous recreational activities.

The court determined that this is a true conflict case where both parties would be harmed, based on their desire for the jurisdiction to be applied in their state.

The next issue once a true conflict has been determined is for the court to determine who (what state) would be harmed the most by a decision. “We thus ascertain whether New York “or Pennsylvania has the greater interest in the application of its law to the question now before us.

The actual analysis came down to how the court looked at the issues.

But, comparable to the insurance policy in Walter, the instant release was executed for the purpose of protecting Whitewater, a Pennsylvania business that “had the right to expect that [the release] conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would apply in interpreting the [release].” “[I]t seems only fair to permit” Whitewater to rely on Pennsylvania law when it acted within Pennsylvania. Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because McDonald is a visitor from New York, a state offering higher protection.

The court decided that the law of Pennsylvania would apply. Because the activity where the accident occurred giving rise to the litigation occurred in Pennsylvania the court determined Pennsylvania law would control.

After carefully weighing the sovereign interests at stake, which include contacts establishing the significant relationships with each sovereign, we hold that Pennsylvania has the greater interest in the application of its law to this case.

The court then went into the analysis of the plaintiff’s claim the release should be thrown out because it was signed under duress.

[McDonald] had testified in her deposition that on May 17, 2006, the Headmaster of the School of the Holy Child handed the Release form to [McDonald], while she was between classes and walking through the school hallway and told her to sign it, since she would be one of the chaperones for the students on the rafting trip.

[McDonald] alleges she signed the Release form without reading it.

The plaintiff stated she did not read the release; however, because she had been on a previous whitewater trip.

The plaintiff next argued that she had no choice but to sign the release because it was required by her job. The court then looked at the issues the plaintiff faced in her annual performance evaluations and found that she would not suffer financially if she had not gone on the trip, therefore, she could not claim she was forced to sign the release.

The defendant argued that it did not compel or force the plaintiff to sign the release. If anyone did, her employer did. Since her employer was not a party to the contract, the release, then there could not be any duress.

To constitute duress or business compulsion there must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.

Because the defendant was not the party “forcing” the plaintiff to sign she could walk away from the release.

Instantly, we frame Whitewater’s question as whether one party to a contract can invoke duress when that duress was allegedly imposed by a non-party and not by the other party to the contract. More precisely, we examine whether McDonald can void the release by claiming the School of the Holy Child economically compelled her to sign the release with Whitewater. McDonald’s presumption is that economic compulsion, i.e., duress, by a non-party to a contract can be “transferred.”

Because the plaintiff was free to walk away from the rafting trip and consequently, the release, the court agreed with the defendant and found there was no duress. “It follows that the School of the Holy Child could not elicit the assent of McDonald by duress.”

Nor did the plaintiff ever claim that the defendant compelled her to sign the release, the only party that a claim of duress against whom the claim could be found. The defendant provided recreational services, which are not something that a claim of duress can be used.

Because a release is not a contract of adhesion, the plaintiff was not forced to sign it.

Thus, an exculpatory clause is not typically analyzed within the framework of whether it is a contract of adhesion. (“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”).

The court found that the plaintiff could not be compelled by anyone and was not compelled by the defendant to sign the release.

The court then looked at whether the release was viable under Pennsylvania law.

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

If the release is found to be valid, it must still be examined under Pennsylvania to see if it meets four more tests.

…unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

The court looked at Pennsylvania law and found releases were valid for inherently dangerous sporting activities.

Regarding the first element needed for a valid exculpatory clause, Pennsylvania courts have affirmed exculpatory releases for “skiing and other inherently dangerous sporting activities,” such as snowtubing and motorcycle racing. Other activities include automobile racing, paintballing, and whitewater rafting. Thus, Pennsylvania courts have held exculpatory clauses pertaining to inherently dangerous sporting activities do not “contravene any policy of the law.”

The court also found the release would be valid if it was between two parties for their own private affairs.

With respect to the second element, our Supreme Court held “[t]he validity of a contractual provision which exculpates a person from liability for his own acts of negligence is well settled if the contract is between persons relating entirely to their own private affairs.”

The court then examined the release and found it spells out the intention of the parties with particularity and shoes the intent of the parties to release the defendant from liability.

The court held the release was enforceable.

So Now What?

This case is long but brings up some interesting arguments to void releases and does a good job of explaining Pennsylvania law on releases.

First the argument that by leaving a specific clause out of a release is proof the person offering the release agrees to the lack of the clause is very scary. Most releases out there leave out a lot. I signed one the other day for an activity that left out both a jurisdiction and venue clause. I signed the release in Nevada where activity occurred. If injured, I would be allowed to sue the California Corporation in Nevada because by not putting the clause in the release it agreed to jurisdiction different from the venue clause.

Thankfully, this argument did not fly. However, it will be picked up in the future and used more often. You cannot tell when a judge or appellate panel will adopt it.

The duress argument is also valid. Duress cannot occur for recreational activities because like the public policy argument, the guest is free to walk away and loses nothing necessary for life. The duress argument is another one that might be brought when the person on the trip is therefore, more than their own enjoyment.

If they are an employee or volunteer of a church or other youth group, if they are required to do public service if they have an employer who wants them to participate, the argument is valid for duress; however, the wrong defendant is being sued. The duress must be brought by the person you are suing to void the release, not the person who made you sign it.

At the same time, it brings up the argument that this might be a subrogation claim brought by the plaintiff’s health insurance carrier or possibly worker’s compensation carrier. If the plaintiff was successful in arguing that the whitewater rafting, trip was part of her employment her injuries, lost wages, and other expenses would be covered by worker’s compensation. Her worker’s compensation insurance carrier then using the subrogation clause in the policy would have the right to sue any party that was the cause for the injuries.

A defense available to the plaintiff also bars any claims made by the insurer when applying the subrogation clause to sue. So a release signed by the plaintiff stops her lawsuit and also here insurer’s lawsuit.

Not having an enforceable jurisdiction clause in a release sent this litigation from the trial court to the appellate court and back again. In this case, it took nine years from the date of the accident, May 2006, and seven years from the start of the lawsuit, July 2008, for the case to be settled. The addition of “and jurisdiction” to the release would have probably ended the case before it got started.

Think about the stress of dealing with a lawsuit against you for seven years.

If you think, the analysis is painful to read, it is. The decision is 27 pages long. There is an entire semester of class on this one subject in law school called “Choice of Laws.” The analysis each time one party claims the lawsuit should be somewhere else or the law applied to the case should be other states not the state where the lawsuit is, is extensive. These cases also take forever.

A case where a person died on a river trip in Arizona was brought in Texas. Six years after the death the Texas Supreme Court sent the case to Arizona where it started all over again. Moki Mac River Expeditions, v. Drugg, 221 S.W.3d 569; 2007 Tex. LEXIS 188; 50 Tex. Sup. J. 498

Of note in the decision but not brought out in the decision was the fact the defendant does not put a guide in every boat on this section of the Lehigh River. One of the claims made by the plaintiff was “a. Failing to provide a river guide / instructor in [McDonald’s] boat;…

For more articles on Jurisdiction and Venue see:

A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit.                                                                                                     http://rec-law.us/zfpK8Z

Buy something online and you may not have any recourse if it breaks or you are hurt    http://rec-law.us/1rOEUQP

Four releases signed and all of them thrown out because they lacked one simple sentence!     http://rec-law.us/vZoa7x

Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases.    http://rec-law.us/1ggLMWR

Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.   http://rec-law.us/zdE1uk

Shark Feeding Death triggers debate                                                                  http://rec-law.us/A1BmMF

The legal relationship created between manufactures and US consumers http://rec-law.us/tiyChu

This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!                                   http://rec-law.us/yCRj3U

What do you think? Leave a comment.

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Whitewater Rafting, Rafting, Jurisdiction, Venue, Lehigh River, Guide, Guided River Trip, Contract of Adhesion, Economic Compulsion. Duress,

 


Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

Erin Mcdonald, Appellee v. Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc., Appellants; Erin Mcdonald, Appellant v. Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc., Appellees

No. 1221 MDA 2013, No. 1400 MDA 2013

SUPERIOR COURT OF PENNSYLVANIA

2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

April 29, 2015, Decided

April 29, 2015, Filed

PRIOR HISTORY: [**1] Appeal from the Order Entered March 28, 2013. In the Court of Common Pleas of Luzerne County. Civil Division No(s).: 6750-CV-2008. Appeal from the Order Entered March 28, 2013. In the Court of Common Pleas of Luzerne County. Civil Division No(s).: 6750-CV-2008.

JUDGES: BEFORE: PANELLA, SHOGAN, and FITZGERALD,1 JJ. OPINION BY FITZGERALD, J.

1 Former Justice specially assigned to the Superior Court.

OPINION BY: FITZGERALD

OPINION

[*101] OPINION BY FITZGERALD, J.:

Appellant/Cross-Appellee, Erin McDonald, appeals from the order entered in the Luzerne County Court of Common Pleas denying her motion for partial summary [*102] judgment adverse to Appellees/Cross-Appellants, Whitewater Challengers, Inc., a Pennsylvania corporation, and Whitewater Challengers Outdoor Adventure Center, trading or doing business as Whitewater Challengers, Inc. (collectively, “Whitewater”). McDonald, a New York resident, suggests the trial court erred by holding Pennsylvania law–and not New York law–applies to this case. Whitewater also appeals from the order denying their motion for summary judgment. Whitewater contends the trial court erred by concluding material issues of fact existed regarding whether McDonald was economically compelled to sign the contract [**2] at issue. We hold that when a New York resident signs an exculpatory release with a Pennsylvania corporation engaged in the business of whitewater rafting in Pennsylvania and is injured while whitewater rafting, Pennsylvania law applies. We further hold that McDonald cannot invoke economic compulsion against Whitewater and that judgment should be entered in Whitewater’s favor on liability. Thus, we affirm in part and reverse in part.

We state the facts as set forth by the trial court:

[McDonald] filed a complaint on [July] 24, 2008[,] alleging that on May 19, 2006, she was a school teacher employed by [t]he School of [the] Holy Child in Rye, New York.

She alleges that on [May 19, 2006], she and other School faculty members chaperoned seventy-two (72) seventh and eighth grade school children on a whitewater rafting “field trip” down a portion of the Lehigh River conducted by [Whitewater].

[McDonald’s] raft struck a large rock situated in the river bed, ejecting [her] from the raft onto the rock, allegedly causing her the injuries alleged in her complaint.

[McDonald’s] allegations of negligence, in paragraph 40 of her complaint, are as follows:

40. [Whitewater’s] negligence consisted of but was [**3] not limited to the following:

a. Failing to provide a river guide / instructor in [McDonald’s] boat;

b. Failing to provide a properly inflated raft;

c. Failing to advise [McDonald] on the grade and / or class of the whitewater rapids;

d. Failing to properly instruct [McDonald] on how to safely and effectively maneuver fast and difficult rapids; and

e. Allowing an unsafe number of inexperienced rafters to operate a raft.

[McDonald’s Compl., 7/24/08, at 9-10.]

At her place of employment, two (2) days before the excursion, [McDonald] signed [Whitewater’s] form “RELEASE OF LIABILITY” . . . .

Trial Ct. Op., 9/15/10, at 1-2.

We reproduce the release in pertinent part:

RELEASE OF LIABILITY — READ BEFORE SIGNING

In consideration of being allowed to participate in any way in the Whitewater Challengers program, its related events and activities, I (print name) Erin L. McDonald the undersigned, acknowledge, appreciate, and agree, that:

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce [*103] this risk, the risk of serious injury does exist; and,

2. [**4] I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and I assume full responsibility for my participation; and

* * *

5. I, for myself and on behalf of my heirs, assigns, personal representatives and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS, WHITEWATER CHALLENGERS, their officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activities (“Releasees”), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law; and,

6. Any claims or disputes arising from my participation in this program shall be venued in the Luzerne County Court in the town of Wilkes-Barre, PA, or in the Supreme Court of the State of Pennsylvania.

I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT. I FULLY UNDERSTAND ITS TERMS AND UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN [**5] IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.

Ex. D to Whitewater’s Mot. for Summ. J., 12/14/12.

On June 6, 2010, Whitewater filed a motion for summary judgment, which the court denied on September 15, 2010. Further discovery ensued, and a few years later, McDonald filed her motion for partial summary judgment and Whitewater filed a second motion for summary judgment. McDonald requested that the court void the release based on New York law. Whitewater asked the court to hold the release was valid under Pennsylvania law and to enforce the release, thus absolving it of liability.

On April 3, 2013,1 the trial court denied McDonald’s motion for partial summary judgment and Whitewater’s motion for summary judgment. Order, 4/3/13. With respect to its holding that Pennsylvania law applied, the court reasoned that our Supreme Court affirmed the validity of such exculpatory releases in inherently dangerous recreational activities, such as downhill skiing. Trial Ct. Op., 4/3/14, at 2-3.2 The trial court also refused to permit out-of-state customers of Pennsylvania recreational facilities “to bring their law with them,” because of the increased “financial/liability uncertainty.” Id. at 3. The court, however, [**6] refused to enforce the release against McDonald, finding material issues of fact existed regarding whether she was economically compelled to sign the release by the School of the Holy Child. Trial Ct. Op., 9/15/10, at 5.

1 The order was served on this date pursuant to Pa.R.C.P. 236; the order was time-stamped on March 28, 2013.

2 On March 13, 2014, this Court ordered the trial court to file a Pa.R.A.P. 1925(a) decision explaining the basis for its ruling. Order, 3/13/14. The trial court complied, and this matter is now ripe for disposition.

On April 18, 2013, Whitewater filed a brief in support of their motion for reconsideration [*104] or appellate certification.3 On April 25, 2013, McDonald filed a motion for reconsideration or appellate certification. The court granted Whitewater’s motion on May 2, 2013,4 and granted McDonald’s motion on May 28, 2013.5

3 The docket and certified record do not reflect the actual motion, although Whitewater’s certificate of service avers they filed it. The certificate of service, which did not include a date of service, was time-stamped on April 18, 2013.

4 The order was time-stamped on April 30, 2013, but the trial court did not serve notice until May 2, 2013.

5 The order was time-stamped on May 23, 2013, [**7] and the trial court served notice on May 28, 2013.

On May 28, 2013, Whitewater filed a petition for permission to file an interlocutory appeal per Pa.R.A.P. 1311. McDonald, on June 21, 2013, filed a petition to file an interlocutory appeal from the trial court’s May 28, 2013 order. This Court granted Whitewater’s petition on July 11, 2013, and McDonald’s petition on August 5, 2013.6

6 This Court consolidated both appeals sua sponte on March 12, 2014. Further, because the parties filed numerous briefs in both appeals, for ease of comprehension, we denote the parties’ briefs by docket number.

We address McDonald’s appeal first, which raises one issue:

Whether New York law should be applied to the facts of this case thereby rendering Whitewater’s Release as void and unenforceable under New York’s statutory and decisional law, where this case poses a legitimate conflict-of-law question, and New York has a more significant relationship to this controversy and the outcome of this case?

McDonald’s Brief, 1400 MDA 2013, at 6.

In support of her sole issue, McDonald argues the trial court erred by incorrectly applying the standard set forth in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). She maintains that because she signed the release in New York, the contract was formed in New York. As a New [**8] York resident, McDonald asserts she is entitled to the benefit of New York law. McDonald claims that if Whitewater intended for Pennsylvania law to apply, then it should have included such a clause in its release. She points out that most of her medical treatment occurred in New York and that the New York State Insurance Fund has an interest in recouping her lost wages and medical expenses. We hold McDonald has not established entitlement to relief.

Initially, an order denying summary judgment is ordinarily a non-appealable interlocutory order. See Stewart v. Precision Airmotive, LLC, 2010 PA Super 168, 7 A.3d 266, 272 (Pa. Super. 2010). As noted above, however, the parties requested, and this Court granted, permission to file interlocutory appeals.7 Order, 3/12/14.

7 We acknowledge that [HN1] generally, when the issue is a question of law, an appellant may be entitled to review of an order denying summary judgment. Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 421-22, 905 A.2d 422, 432-33 (2006) (holding collateral order doctrine applied to order denying summary judgment because party raised defense of statutory immunity). When the issue is a question of fact, appellate jurisdiction is lacking. See Stewart, 7 A.3d at 272. Thus, if an appellate court grants permission to appeal an order denying summary judgment, see 42 Pa.C.S. § 702, but later determines that the underlying issue is a question of [**9] fact, appellate jurisdiction is arguably lacking. See generally id.

The standard and scope of review is well-settled:

[HN2] Pennsylvania law provides that summary judgment may be granted only in [*105] those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the nonmoving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. With regard to questions of law, an appellate court’s scope of review is plenary. [**10] The Superior Court will reverse a grant of summary judgment only if the trial court has committed an error of law or abused its discretion.

Charlie v. Erie Ins. Exchange, 2014 PA Super 188, 100 A.3d 244, 250 (Pa. Super. 2014) (punctuation and citation omitted).

As a prefatory matter, we must ascertain whether to apply a tort or contract choice of law framework.8 Two cases are instructive: McCabe v. Prudential Prop. & Cas. Ins. Co., 356 Pa. Super. 223, 514 A.2d 582 (1986), and Nationwide Mut. Ins. Co. v. Walter, 290 Pa. Super. 129, 434 A.2d 164 (1981). In Walter, this Court addressed an exclusionary provision in an insurance policy issued to a New Jersey resident for a car involved in a Pennsylvania accident. Walter, 290 Pa. Super. at 133-34, 434 A.2d at 166. The car’s driver and passenger were both Pennsylvania residents. Id. at 137, 434 A.2d at 168. The exclusionary provision was invalid under New Jersey law and valid under Pennsylvania law. Id. at 135-36, 434 A.2d at 167. The Walter Court rejected the appellant’s argument that Pennsylvania law should apply because the accident occurred in Pennsylvania and the injured occupants of the car were Pennsylvania residents:

[The a]ppellant argues that Pennsylvania had the most significant contacts as the car was located in Pennsylvania when the accident occurred having been previously delivered to Bucks County Imports by [the insured], the accident occurred in Pennsylvania, and both occupants of the car at the time of the accident were Pennsylvania residents. [The a]ppellant overlooks [**11] the fact that these points of contact with Pennsylvania pertained to the alleged tort involved. We are concerned with the contract of insurance and as to the insurance policy New Jersey had the most significant contacts.

Id. at 137-38, 434 A.2d at 168.

8 A statutory choice of law analysis does not apply to this case.

In McCabe, this Court similarly addressed which state’s law applied in construing a Connecticut automobile insurance policy issued to a Connecticut resident. McCabe, 356 Pa. Super. at 225, 514 A.2d at 582. While in Pennsylvania, the Connecticut resident was involved in a car accident that injured a Pennsylvania resident. Id. The McCabe appellees argued that Pennsylvania law applied because, inter alia, the “victim is a resident of Pennsylvania, and the accident occurred there. Both [insurers] are licensed to do business in Pennsylvania.” Id. at 232, 514 A.2d at 586. The McCabe Court rejected that argument [*106] based upon the Walter Court’s reasoning. Id. Both Walter and McCabe stand for the proposition that [HN3] in a contract action involving an underlying tort and in which an insurance policy is at issue, the court will apply a contract law–and not a tort law–choice of law framework. Id.; Walter, 290 Pa. Super. at 137-38, 434 A.2d at 168; see also Tayar v. Camelback Ski Corp., 616 Pa. 385, 394, 47 A.3d 1190, 1196 (2012) (applying contract law to interpret clause exculpating defendant ski resort from liability [**12] in negligence action); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 26, 2 A.3d 1174, 1189 (2010) (same). Neither Chepkevich nor Tayar engaged in a choice of law analysis, but neither case looked beyond contract law in construing the clause. Thus, in the instant tort action involving a contractual exculpatory clause, but not involving an automobile insurance policy, we apply a contract choice of law framework. See Tayar, 616 Pa. at 394, 47 A.3d at 1196; Chepkevich, 607 Pa. at 26, 2 A.3d at 1189; McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter, 290 Pa. Super. at 137-38, 434 A.2d at 168; cf. Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (construing exculpatory agreement as barring plaintiff’s negligence claims for injuries that occurred while whitewater rafting); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (invoking contractual standard of review in ascertaining whether exculpatory clause barred negligence claims).9

9 In Budtel Assocs., LP v. Cont’l Cas. Co., 2006 PA Super 370, 915 A.2d 640 (Pa. Super. 2006), our Court held that the Griffith rule applies to contract cases. Id. at 643-44. Budtel, however, did not involve a negligence claim.

Having ascertained a contract choice of law framework applies, we set forth the following as background10 with respect to choice of law principles applicable to cases not involving an explicit statutory11 or a contractual choice of law provision:12 [HN4] “the first step in a choice of law analysis under Pennsylvania law is to determine whether [an actual] conflict exists between the laws of the competing states. If no [actual] conflict exists, further analysis is unnecessary.” Budtel, 915 A.2d at 643 (citation [**13] omitted). An actual conflict exists if “there are relevant differences between the laws.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir. 2007).13

10 See Gregory E. Smith, Choice of Law in the United States, 38 Hastings L.J. 1041, 1131 (1987) (“No state has a more convoluted, eclectic approach to choice of law than Pennsylvania. On various occasions, its courts have applied the First and Second Restatements, the center of gravity approach, interest analysis and Professor Cavers’ ‘principles of preference.'”); accord Melville v. Am. Home Assurance Co., 443 F. Supp. 1064, 1076 (E.D. Pa. 1977) (“The opinions of the Pennsylvania courts both state and federal have left Pennsylvania’s choice of law rules and methodology with respect to contract cases in utter disarray; indeed, the courts have used facially inconsistent legal standards without acknowledging apparently conflicting precedent.”), rev’d, 584 F.2d 1306, 1313 (3d Cir. 1978) (predicting Pennsylvania would apply the Griffith choice of law framework to contract actions).

11 See, e.g., 42 Pa.C.S. § 5521(b) (“The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.”).

12 Synthes USA Sales, LLC v. Harrison, 2013 PA Super 324, 83 A.3d 242, 252 (Pa. Super. 2013) (“Choice of law provisions in contracts will generally be given effect.” (citation omitted)); Nationwide Mut. Ins. Co. v. West, 2002 PA Super 282, 807 A.2d 916, 920 (Pa. Super. 2002) (same).

13 With [**14] respect to federal decisions, we acknowledge the following:

[F]ederal court decisions do not control the determinations of the Superior Court. Our law clearly states that, absent a United States Supreme Court pronouncement, the decisions of federal courts are not binding on Pennsylvania state courts, even when a federal question is involved. . . . Whenever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not improperly “walk across the street” to achieve a different result in federal court than would be obtained in state court.

NASDAQ OMX PHLX, Inc. v. PennMont Secs., 2012 PA Super 145, 52 A.3d 296, 303 (Pa. Super. 2012) (citations omitted); accord Parr v. Ford Motor Co., 2014 PA Super 281, 109 A.3d 682, 693 n.8 (Pa. Super. 2014) (en banc) (citations and punctuation omitted).

[*107] If an actual conflict exists, then we classify it as “true,” “false,” or “unprovided-for.” Cipolla v. Shaposka, 439 Pa. 563, 565, 267 A.2d 854, 855-56 (1970); Miller v. Gay, 323 Pa. Super. 466, 470, 470 A.2d 1353, 1355 (1983). A “true conflict” occurs “when the governmental interests of both jurisdictions would be impaired if their law were not applied.” Garcia v. Plaza Oldsmobile, Ltd., 421 F.3d 216, 220 (3d Cir. 2005). “A ‘false conflict’ exists if only one jurisdiction’s governmental interests would be impaired by the application of the other jurisdiction’s law. In such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.”14 Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991) (footnote omitted); Kuchinic v. McCrory, 422 Pa. 620, 624, 222 A.2d 897, 899 (1966). In “unprovided-for” cases, “neither jurisdiction’s [**15] interests would be impaired if its laws are not applied.”15 Garcia, 421 F.3d at 220 (footnote omitted). If a true conflict is found, then we must determine “which state has the greater interest in the application of its law.”16 Cipolla, 439 Pa. at 566, 267 A.2d at 856.

14 We are aware that Pennsylvania federal and state courts have defined “false conflict” inconsistently. Upon reflection, we agree with the rationale advanced by the United States Court of Appeals for the Third Circuit in Hammersmith:

We think it is incorrect to use the term “false conflict” to describe the situation where the laws of two states do not differ. If two jurisdictions’ laws are the same, then there is no conflict at all, and a choice of law analysis is unnecessary. Thus, the first part of the choice of law inquiry is best understood as determining if there is an actual or real conflict between the potentially applicable laws. See, e.g., [Air Prods. & Chems., Inc. v. Eaton Metal Prods. Co., 272 F. Supp. 2d 482, 490 n.9 (E.D. Pa. 2003)] (“Before we even reach the ‘false conflict’ question, we must determine whether, for lack of better terminology, a ‘real conflict’ as opposed to ‘no conflict’ exists; that is, we must determine whether these states would actually treat this issue any differently.”).

Hammersmith, 480 F.3d at 230.

15 We leave for another day a determination of which state’s law applies in an [**16] “unprovided-for conflict” in contract cases. In tort cases, generally, the law of the state where the injury occurred is applied. See Miller, 323 Pa. Super. at 470-72, 470 A.2d at 1355-56.

16 If there is more than one issue, then Pennsylvania applies dépeçage, i.e., “different states’ laws may apply to different issues in a single case . . . .” Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006) (citation omitted); Broome v. Antlers’ Hunting Club, 595 F.2d 921, 924 (3d Cir. 1979) (predicting Pennsylvania Supreme Court would apply law of different states to separate issues). Although no court in this Commonwealth has explicitly held that Pennsylvania applies dépeçage, Pennsylvania federal courts have consistently applied the doctrine. Furthermore, the doctrine is arguably suggested by, if not harmonious with, the Griffith Court’s flexible choice of law framework. See Griffith, 416 Pa. at 21, 203 A.2d at 805. The United States Court of Appeals for the Third Circuit observed that dépeçage was implicit in Professor Cavers’ choice of law analysis, which our Supreme Court approvingly quoted in Cipolla. See Reyno v. Piper Aircraft Co., 630 F.2d 149, 167 n.73 (3d Cir. 1980) (holding dépeçage is “implicit in the analysis of Professor Cavers” (citing David Cavers, The Choice-of-Law Process 40-43 (1965))), rev’d on other grounds, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981); Cipolla, 439 Pa. at 567, 267 A.2d at 856-57 (quoting Cavers’ treatise, supra, extensively).

[*108] In Cipolla, our Supreme Court examined whether a true conflict existed between the tort [**17] laws of Delaware and Pennsylvania. Id. at 564, 267 A.2d at 855. The defendant was a Delaware resident and the plaintiff was a Pennsylvania resident. Id. The defendant, who was driving a car registered in Delaware, was driving the plaintiff home to Pennsylvania when they collided with another vehicle in Delaware. Id. The plaintiff sued the defendant for negligence only, and our Supreme Court examined which state’s law applied. Id. If Delaware law applied, then the plaintiff could not recover under a Delaware statute preventing a guest from recovering for the negligence of the host. Id. If Pennsylvania law applied, then the plaintiff could recover if he could establish the defendant’s negligence. Id. at 564-65, 267 A.2d at 855. The Cipolla Court reasoned that a true conflict existed because the plaintiff “is a resident of Pennsylvania which has adopted a plaintiff-protecting rule and [the defendant] is a resident of Delaware which has adopted a defendant-protecting rule” and thus a “deeper analysis” was required to determine “which state has the greater interest in the application of its law.” Id. at 565-66, 267 A.2d at 856.

Similarly, in Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226, 582 A.2d 27 (1990), the Superior Court ascertained whether a true conflict existed between the laws of Pennsylvania and Texas regarding a malicious prosecution [**18] claim. Id. at 231, 582 A.2d at 30. In Pennsylvania, seizure of the plaintiff’s person or property is not a necessary element for malicious prosecution. Id. Texas, however, requires that a party alleging malicious prosecution suffer physical detention of the claimant’s person or property. Id. The Rosen Court held there was a true conflict because Texas wished “to assure every potential litigant free and open access to the judicial system without fear of a countersuit for malicious prosecution.” Id. at 232, 582 A.2d at 30. Pennsylvania, in contrast, provided “greater protection to those individuals and entities who may be forced to defend a baseless suit.” Id. at 233, 582 A.2d at 31. Thus, having concluded a true conflict existed, the Rosen Court then determined which state had “the greater interest in the application of its law on malicious prosecution to the instant matter.” Id. at 233, 582 A.2d at 31.

In sum, [HN5] in Pennsylvania, a conflict-of-law analysis not involving a statutory or contractual choice of law clause, first requires determining whether the laws in question actually conflict. E.g., Budtel, 915 A.2d at 643. If relevant differences between the laws exist, then we next classify the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for conflict.” Cipolla, 439 Pa. at 565, 267 A.2d at 855-56; Miller, 323 Pa. Super. at 470, 470 A.2d at 1355.

Instantly, a New York statute [**19] voids clauses immunizing recreational facilities from liability for negligence because they violate New York’s public policy.17 N.Y. Gen. Oblig. Law § 5-326 (McKinney 2014). Pennsylvania, however, recognizes the validity of such exculpatory clauses when they govern voluntary and hazardous recreational activities. See, e.g., Chepkevich, [*109] 607 Pa. at 36, 2 A.3d at 1195. Because relevant differences exist between New York and Pennsylvania jurisprudence, see Hammersmith, 480 F.3d at 230, there is an actual conflict that we must classify as a “true conflict,” “false conflict,” or “unprovided-for conflict.”

17 No party has suggested the statute applies outside of New York. Cf. Garcia, 421 F.3d at 220 (noting, “In our conflicts-of-law analysis[,] the first issue that we must address is whether New York’s . . . [l]aw with respect to the issue at hand has extraterritorial application, and, accordingly, whether that law by its terms can be applied to determine liability for the Pennsylvania accident underlying this appeal.”)

Akin to Rosen, which identified a true conflict because of Pennsylvania’s and Texas’s diametrically opposing views on malicious prosecution, Pennsylvania provides greater protection to recreational facilities, unlike New York, which favors protecting participants injured at such facilities. See Rosen, 399 Pa. Super. at 232-33, 582 A.2d at 30-32. To paraphrase [**20] our Supreme Court in Cipolla, the fact that McDonald is a resident of New York, which has adopted a plaintiff-protecting rule, and Whitewater is a resident of Pennsylvania, which has adopted a defendant-protecting rule, demonstrates a true conflict. See Cipolla, 439 Pa. at 565-66, 267 A.2d at 856.

We thus ascertain whether New York “or Pennsylvania has the greater interest in the application of its law to the question now before us.” See id. at 565, 267 A.2d at 855.

[HN6] In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the “policies and interest underlying the particular issue before the court.” [Griffith, 416 Pa. at 21, 203 A.2d at 805]. When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale.

* * *

Also, it seems only fair to permit a defendant to rely on his home state law when he is acting within that state.

Consider the response that would be accorded a proposal that was the opposite of this principle if it were advanced against a person living in the state of injury on behalf of a person coming there [**21] from a state having a higher standard of care or of financial protection. The proposal thus advanced would require the community the visitor entered to step up its standard of behavior for his greater safety or lift its financial protection to the level to which he was accustomed. Such a proposal would be rejected as unfair. By entering the state or nation, the visitor has exposed himself to the risk of the territory and should not subject persons living there to a financial hazard that their law had not created.

Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state’s laws just because a visitor from a state offering higher protection decides to visit there.

Id. at 566-67, 267 A.2d at 856-57 (citations, punctuation, and footnote omitted); accord Myers v. Commercial Union Assurance Cos., 506 Pa. 492, 496, 485 A.2d 1113, 1115-16 (1984).18

18 We acknowledge that other Pennsylvania state and federal courts have construed the Griffith interest analysis differently. In Gillan v. Gillan, 236 Pa. Super. 147, 345 A.2d 742 (1975), and Knauer v. Knauer, 323 Pa. Super. 206, 470 A.2d 553 (1983), the Superior Court interpreted Griffith as adopting the Restatement (Second) of Conflicts of Law § 188, and applied the Restatement to the contracts at issue. Knauer, 323 Pa. Super. at 215, 470 A.2d at 558; Gillan, 236 Pa. Super. at 150, 345 A.2d at 744. Our Commonwealth Court in Ario v. Underwriting Members of Lloyd’s of London Syndicates 33, 205 & 506, 996 A.2d 588 (Pa. Commw. 2010), similarly opined in an insurance contract case that Griffith “adopted the [**22] approach of the Restatement of Conflict of Laws, Second to resolving choice of law questions.” Id. at 595 (citations omitted). “We of course recognize that a decision of the Commonwealth Court is not binding precedent upon this Court; however, it may be considered for its persuasive value.” Holland v. Marcy, 2002 PA Super 381, 817 A.2d 1082, 1083 n.1 (Pa. Super. 2002) (en banc) (citation and punctuation omitted). Section 188 identifies several factors in resolving choice of law:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

Restatement (Second) of Contracts § 188 (1971). In contrast, the Third Circuit has consistently opined that Griffith combined “the ‘approaches of both the Restatement II (contacts establishing significant relationships) and interests analysis (qualitative appraisal of the relevant States’ policies with respect to the controversy).'” Hammersmith, 480 F.3d at 231 (punctuation omitted) (quoting Melville, 584 F.2d at 1311).

[*110] For example, the Walter Court ascertained whether Pennsylvania or New Jersey law should apply to an automobile insurance policy. Walter, 290 Pa. Super. at 136, 434 A.2d at 167. The Walter Court reviewed each state’s contacts with the contract:

In this contract case, [**23] the state having the most vital contacts with the policy of insurance involved was New Jersey. The policy was issued in New Jersey by the appellant in June, 1972, to Mr. Walter, a resident of New Jersey. It was issued for the twofold purpose of giving insurance protection to Mr. Walter and others as set forth in the policy, and to comply with the requirements set forth in the New Jersey Motor Vehicle Security Responsibility Statute . . . . No matter where [Mr. Walter’s agent] drove [Mr. Walter’s] car or gave consent to others to operate his vehicle, [Mr. Walter] had the right to expect that his policy conformed to New Jersey law and that the laws of New Jersey would apply in interpreting the policy. Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that the automobile was involved in an accident while located in Pennsylvania. As noted in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796: “(T)he site of the accident purely fortuitous.”

Id. at 137, 434 A.2d at 167-68. Because, inter alia, the appellant “issued an insurance policy to [Mr. Walter] to cover an automobile located in New Jersey,” and he obtained the policy to comply with New Jersey laws, the Walter Court held New Jersey law applied. Id. at 138, 434 A.2d at 168.

In McCabe [**24] , this Court likewise examined each state’s contacts to a Connecticut insurance contract:

In the instant case, [the insurer] argues that Connecticut law would apply since [the insured] lived in Connecticut, and the . . . policy of Insurance was executed there. It also contends that “underlying these contacts are Connecticut’s sovereign interests that the rights of its residents and those who do business in its state are governed by Connecticut law and that its insurance law, as applied to the insurance policy, will be given full faith and credit by a sister state.” Finally, [the insurer] alleges that Connecticut has an interest in minimizing insurance premiums for its residents. . . .

Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that [*111] the Connecticut automobile owned and operated by [the insured] was involved in an accident while located in Pennsylvania. . . . At this time, we are concerned with contract of insurance, and, as to the insurance policy, Connecticut had the most significant contacts.

McCabe, 356 Pa. Super. at 232, 514 A.2d at 586.

Instantly, similar to McCabe and Walter, whose contracts were executed outside of Pennsylvania, the exculpatory clause was executed [**25] in New York by McDonald, a New York resident. See id.; Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. New York certainly has a sovereign interest in protecting McDonald and may wish, as she averred, to recoup the costs of her medical treatment. See McCabe, 356 Pa. Super. at 232, 514 A.2d at 586. But, comparable to the insurance policy in Walter, the instant release was executed for the purpose of protecting Whitewater, a Pennsylvania business that “had the right to expect that [the release] conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would apply in interpreting the [release].” See Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. “[I]t seems only fair to permit” Whitewater to rely on Pennsylvania law when it acted within Pennsylvania. See Cipolla, 439 Pa. at 567, 267 A.2d at 856. Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because McDonald is a visitor from New York, a state offering higher protection. See id. Unlike McCabe and Walter, the site of the accident was not fortuitous, as the underlying accident occurred at Whitewater’s place of business in Pennsylvania on a preplanned outing for which McDonald signed a contract. Cf. McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. After carefully weighing the sovereign interests at stake, which include contacts establishing the significant relationships with each sovereign, we [**26] hold that Pennsylvania has the greater interest in the application of its law to this case. See Cipolla, 439 Pa. at 566, 267 A.2d at 856. Accordingly, we discern no basis for reversing the trial court’s order on this point. See Charlie, 100 A.3d at 250.

We next address Whitewater’s appeal, which raised the following issues:

Whether the trial court erred by denying summary judgment on the basis of [McDonald’s] alleged, and mere belief, that she was “economically compelled” to sign the release by her employer?

Whether [Whitewater] was entitled to summary judgment because the “Release of Liability” is a valid and enforceable exculpatory clause involving a recreational activity as a matter of well-established Pennsylvania law?

Whether [McDonald’s] claims against Whitewater are barred by the valid and enforceable Release, which [McDonald] signed knowingly and fully conscious of its meaning, and which contains clear and unambiguous language expressly releasing [Whitewater] from any liability for negligent conduct and shows [McDonald’s] express waiver of her right to bring any such negligence claims?

Whitewater’s Brief, 1221 MDA 2013, at 5 (reordered to facilitate resolution).

We set forth the following as background.

[McDonald] had testified in her deposition that on May 17, 2006, the Headmaster [**27] of the School of the Holy Child handed the Release form to [McDonald], while she was between classes and walking through the school hallway and told her to sign it, since she would be one of the chaperones for the students on the rafting trip.

[McDonald] alleges she [*112] signed the Release form without reading it.

Trial Ct. Op., 9/15/10, at 2. McDonald explained “that she did not read the Release because she had previously been on a whitewater trip in 2004.” McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., 1/14/13, at 6 (citation omitted).

At her deposition, McDonald testified about the circumstances of her departure from the School of the Holy Child:

[Whitewater’s counsel]. Why did you leave School of the Holy Child to go [elsewhere]?

A. Well, due to the accident, I was only able to work parttime and after–

* * *

A. And when [teaching] contracts were renewed [in February 2007], I was given a contract, but I only received a one percent increase and–

* * *

A. . . . despite the fact that I had, you know, superior evaluation and the fact that I had been hurt on the job, I was insulted by the one percent increase.

Q. Were you told by one of your supervisors that the reason you [**28] got a one percent increase was because of your reduced work and the fact that you were injured on the job?

A. No.

Q. Did anyone tell you that?

A. No.

Q. That’s something that you surmised–

A. Yes.

Q. –based on the circumstances?

A. Yes, sir.

Q. Well, it carried [sic] $5,000. I can’t do the math very quickly, but.

A. Okay, all right, and this one percent raise turned out to be what?

A. Approximately $610.

Q. Okay, and your raises, while you were at School of the Holy Child, were they always consistent with approximately the $5,000 increase?

A. Three years previous to that, I’d gotten a $20,000 boost because I was seen as being a master teacher.

Q. Okay, all right. And this $600 . . . you didn’t expect another $20,000 bump, but you thought you might get something closer to the 5 grand that you had gotten the previous year.

A. Yes.

Q. And when you didn’t, you surmised it was because of your injury.

A. Yes, and I wasn’t going to be able to do all the extras that are pretty much inherent in working in an independent school.

Q. Extras, such as what?

A. Chaperoning trips to Europe, did that. Attending trustees, board of trustees and faculty dinners. Participating in faulty/student games. All the extras that [**29] are just read into our contract.

Q. Okay, and those are things that you did prior to the accident.

A. Yeah.

Q. And you did not do them after the accident.

A. No.

Q. Okay, so when you got your one percent raise, is that when you quit, you resigned?

A. No, I looked for a job first.

Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 11-14.

We reproduce the following exchange from the deposition testimony of Ann Sullivan, [*113] the head of the School of the Holy Child, regarding its annual job evaluations:

[McDonald’s counsel]. And in terms of conducting evaluations of employees, and in particular teachers, was participation in afterschool extracurriculars or school trips, was that a factor looked at in terms of doing the evaluation?

A. I think it’s discussed during the evaluation. If you look at the evaluation forms, which are very idiosyncratic, there are four buckets. One is professional competence, one is commitment–

Q. I’m going to ask you–

A. Let me give you the background–one is commitment to the community, the third is leadership, and the fourth is congruence with the mission. There was a lot of discussion as to what percent each of those buckets was taken into [**30] consideration, and, frankly, it varies, and there was no answer to that. And I have to say it was all of those ways, but to varying degrees. Some people are great community people and not so great in the classroom, some people are great in the classroom and not so great in the community life. So, you know, it wasn’t meant to be punitive. It was to recognize different contributions.

Q. All right, I understand. But I just want to make sure I understand correctly. Even though there were different ways–you indicated there were different wings [sic] attached to different factors, you are saying, if I understand correctly–I’m not trying to put words in your mouth–that participation in school trips and extracurricular activities was at least a factor?

A. I’m going to go back to that that it is a broader discussion of community than going on school trips. Sometimes it is class trips, sometimes it is attending events. You know, it’s broader than that. It’s not a quid pro quo. You don’t get an extra $500 added to your salary because you are a chaperon [sic].

Q. Right, I understand there wasn’t a specific dollar amount that was attached for any particular factor indicated on the evaluation form, [**31] but it was at least a factor that was put into the overall mix in conducting evaluations of faculty, is that fair to say?

A. But it could be something quite different. It could be being the moderator of the yearbook or the Model UN. You are a making this assumption that going on extracurricular trips was part of your evaluation. It’s only one of many, many possible factors. I want you to know many people did not go on trips. There are a lot of young parents in the school and they are not able to go away overnight because–

[Sullivan’s counsel]: Parents or teachers?

A. Parents who are teachers. There are teachers who are young parents, have infants and toddlers and couldn’t do those trips, and certainly it was great if they would go to a concert and they would show up at field hockey games.

[McDonald’s counsel]. I understand. No one was compelled to go on any particular trip, but participation in things was at least a factor identified in her evaluation, is that correct?

A. I read [in McDonald’s employment file] that her supervisor thanked her for going on trips and going to athletic events.

Q. Hum-hum.

A. But, you know, I could say that there were wonderful people who declined to go on the [**32] trips and there were no financial repercussions.

Q. Okay. No one was ever terminated for not going on any extracurricular trips?

[*114] A. Never. And they were not–their salaries were not reduced for not going on trips.

Q. And there was never an employee who was penalized in his or her paycheck for not going on a school extracurricular or participating in afterschool projects.

A. Right.

Ex. I to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 38-41.

In support of their first issue, Whitewater contends that economic compulsion does not apply because McDonald’s employer–and not Whitewater–compelled McDonald to sign the release. Regardless, Whitewater argues that McDonald failed to present evidence establishing her employer compelled her to sign. Whitewater asserts that the undisputed record demonstrated McDonald would have suffered no repercussions by not participating in rafting.19 We hold Whitewater is entitled to relief.

19 Whitewater also contends McDonald waived her defense of duress by failing to raise it in her answer to Whitewater’s new matter invoking the release as a defense. Whitewater’s Brief, 1221 MDA 2013, at 28 (citing only Tri-State Roofing Co. of Uniontown v. Simon, 187 Pa. Super. 17, 19, 142 A.2d 333, 334 (1958) [hereinafter “Tri-State“]). The Tri-State Court did not hold that when the [**33] defendant invokes a contract as a defense in a new matter, the plaintiff is bound to raise all affirmative defenses in its reply to the new matter. Rather, the Court was merely summarizing the procedural posture in which the defendant filed a reply alleging duress in response to the plaintiff’s new matter. See id. at 19, 142 A.2d at 335. Whitewater did not articulate any other basis for waiver, and it is well-settled that [HN7] we may not reverse on an argument not raised. See generally Pa.R.A.P. 302. Accordingly, we decline to hold McDonald waived her defense.

It is well-settled that [HN8] the standard of review for an order resolving summary judgment is abuse of discretion or error of law. Charlie, 100 A.3d at 250. Our Supreme Court defined duress as follows:

[HN9] The formation of a valid contract requires the mutual assent of the contracting parties. Mutual assent to a contract does not exist, however, when one of the contracting parties elicits the assent of the other contracting party by means of duress. Duress has been defined as:

That degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness . . . . The quality of firmness is assumed [**34] to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm . . . . Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness . . . . Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel . . . .

Degenhardt v. Dillon Co., 543 Pa. 146, 153-54, 669 A.2d 946, 950 (1996) (citations and punctuation omitted).

[HN10] Economic duress, i.e., business or economic compulsion, is a form of duress. Tri-State, 187 Pa. Super. at 20, 142 A.2d at 335. The Tri-State Court defined economic duress as follows:

To constitute duress or business compulsion there must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances [*115] and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.

Id. at 20-21, 142 A.2d at 335 (citation and punctuation omitted). The Court applied the above principles in ascertaining “whether [the] plaintiff’s threat to breach its contract with the defendant, if defendant [**35] did not sign the release . . . , constituted duress.” Id. at 18, 142 A.2d at 334.

In Litten v. Jonathan Logan, Inc., 220 Pa. Super. 274, 286 A.2d 913 (1971), this Court addressed whether a prior, favorable oral contract or a subsequent, unfavorable written contract controlled. Id. at 276-77, 286 A.2d at 914. “Plaintiffs contend they were compelled under the duress and coercion of the defendant to enter into the written contract because defendant had maneuvered plaintiffs into an untenable economic crisis from which they could extricate themselves only by signing the agreement prepared by defendant.” Id. at 277, 286 A.2d at 914-15. The jury agreed with the plaintiffs, and the defendant appealed, arguing, inter alia, the court failed to instruct the jury properly regarding duress. Id. at 277, 286 A.2d at 915. This Court affirmed, holding the defendant economically compelled the plaintiff to execute the subsequent written contract. Id. at 281-82, 286 A.2d at 917. In affirming the jury verdict, this Court approvingly quoted the trial court’s jury charge, which identified the elements of economic duress:

(1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate legal remedy. The cases cited by defendant on this point . . . are inapplicable [**36] because in those cases the defendants did not bring about the state of financial distress in which plaintiffs found themselves at the time of signing. In the instant case, the final and potentially fatal blow was prepared by defendant, which by its actions created the situation which left plaintiffs with no alternative but to sign the contract as written.

* * *

Business compulsion is not establish[ed] merely by proof that consent was secured by the pressure of financial circumstances, but a threat of serious financial loss may be sufficient to constitute duress and to be ground for relief where an ordinary suit at law or equity might not be an adequate remedy. . . .

Id. at 282-83, 286 A.2d at 917 (citations, punctuation, and footnote omitted).

In Chepkevich, our Supreme Court adverted to economic duress in resolving whether an exculpatory agreement should be construed as a contract of adhesion:

[D]ownhill skiing–like auto racing–is a voluntary and hazardous activity . . . . Moreover, an exculpatory agreement conditioning use of a commercial facility for such activities has not been construed as a typical contract of adhesion. The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, [**37] because it does not relate to essential services, but merely governs a voluntary recreational activity. See [Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D. Pa. 1990)] (exculpatory clause valid under Pennsylvania law where activity is purely recreational); Grbac v. Reading Fair Co., 521 F. Supp. 1351, 1355 (W.D. Pa. 1981), aff’d, 688 F.2d 215 (3d Cir. 1982) (exculpatory clause releasing stock car racing company from liability for death arising out of recreational race not invalid contract of adhesion [*116] under Pennsylvania law). The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable. . . .

It is also apparent that the Release here is valid under the other elements of the [standard governing validity of exculpatory provisions set forth in Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993), and Emp’rs Liab. Assurance Corp. v. Greenville Bus. Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966) (referred to as the Topp Copy/Employers Liability standard)], aside from adhesion contract concerns. First, the Release cannot be said to contravene any policy of the law. Indeed, the clear policy of this Commonwealth, as embodied by the [Skier’s Responsibility] Act, is to encourage the sport and to place the risks of skiing squarely on the skier. 42 Pa.C.S. § 7102(c)(2). Furthermore, Pennsylvania courts have upheld similar releases respecting skiing and other inherently dangerous sporting [**38] activities. See, e.g., Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110 (Pa. Super. 2007) (citing Superior Court panel’s decision in instant case, but upholding release as applied to snow tubing accident); [Nissley v. Candytown Motorcycle Club, 2006 PA Super 349, 913 A.2d 887 (Pa. Super. 2006)] (upholding exculpatory agreement that released defendant motorcycle club from “all liability”); [Zimmer v. Mitchell & Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978)] (upholding exculpatory clause releasing ski rental shop from liability for injury suffered when skier’s bindings failed to release during fall). And, finally, the Release [the appellee] signed is a contract between the ski resort and [the appellee] relating to their private affairs, specifically [the appellee’s] voluntary use of the resort’s facilities.

Chepkevich, 607 Pa. at 28-30, 2 A.3d at 1190-91. Thus, an exculpatory clause is not typically analyzed within the framework of whether it is an contract of adhesion. Id. at 29, 2 A.3d at 1191 (“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”).

The case of Gillingham v. Consol Energy, Inc., 2012 PA Super 133, 51 A.3d 841 (Pa. Super. 2012), appeal denied, 621 Pa. 679, 75 A.3d 1282 (2013), is also instructive. Technical Solutions contractually employed Gillingham to work full-time on a software development project located at one of Consol Energy’s properties; Gillingham was considered an independent contractor of [**39] Consol. Id. at 853-54. A few weeks later, Consol asked Gillingham to sign “a stack of documents,” which included

a waiver of his right to sue Consol in the event he was injured due to its negligence. He felt that he had to sign the pages in question since he was contractually obligated to provide his services on the project through Technical Solutions. Mr. Gillingham believed that he was not in a position to refuse to sign the documents presented to him by Consol, and he stated, “If I would have not signed them, I would have to leave the site . . . because it’s like saying, No, I’m not going to honor your agreement and protect this technology.” He also would have violated his contract with Technical Solutions.

Id. at 854 (citation omitted). While exiting a Consol building via an exterior metal stairway, Gillingham was injured when the stairway collapsed. Id. at 847.

[*117] Gillingham successfully sued Consol. Id. On appeal, Consol contended the trial court should have granted its request for judgment notwithstanding the verdict because of the release Gillingham signed. Id. at 852. Gillingham countered that he felt compelled to sign the Consol release because (1) “he was contractually obligated to provide his services on the [**40] project through Technical Solutions,” and (2) he would have violated his employment contract with Technical Solutions, i.e., his employer. Id. at 854. The Gillingham Court held the record was sufficient to have a jury ascertain whether “Gillingham, who was under contract to provide services on the project, was compelled to execute the documents due to Consol’s superior bargaining position.” Id. The Court thus affirmed the jury’s verdict in favor of Gillingham. Id.

Instantly, we frame Whitewater’s question as whether one party to a contract can invoke duress when that duress was allegedly imposed by a non-party and not by the other party to the contract. More precisely, we examine whether McDonald can void the release by claiming the School of the Holy Child economically compelled her to sign the release with Whitewater. McDonald’s presumption is that economic compulsion, i.e., duress, by a non-party to a contract can be “transferred.”

Under these unique facts, we decline McDonald’s apparent invitation to expand a doctrine traditionally invoked between contracting parties. Our Supreme Court held that [HN11] mutual assent is a prerequisite to contract formation and that such mutual assent is absent [**41] “when one of the contracting parties elicits the assent of the other contracting party by means of duress.” See Degenhardt, 543 Pa. at 153, 669 A.2d at 950. McDonald and Whitewater are the contracting parties to the release; the School of the Holy Child is not a contracting party. It follows that the School of the Holy Child could not elicit the assent of McDonald by duress. See id.

Further, McDonald does not claim Whitewater economically compelled her to sign the release. Unlike the plaintiff in Litten, McDonald has not alleged that Whitewater–a contracting party–maneuvered her into economic distress and compelled her to sign the contract. Cf. Litten, 220 Pa. Super. at 281-82, 286 A.2d at 917; Tri-State, 187 Pa. Super. at 18, 142 A.2d at 334 (resolving allegation of duress between contracting parties). Whitewater, which provided recreational services similar to the ski resort in Chepkevich, did not compel McDonald to participate, “much less . . . sign the exculpatory agreement.” See Chepkevich, 607 Pa. at 29, 2 A.3d at 1191. In contrast to Gillingham, in which the plaintiff was contractually obligated to work for Consol, the other contracting party, McDonald was not contractually obligated to participate in recreational activities at Whitewater. Cf. Gillingham, 51 A.3d at 854. Nor did she allege that she would have violated her contract with the School of the Holy Child if she did not [**42] sign the Whitewater release. Cf. id. (stating plaintiff would have violated his employment contract with Technical Solutions, his direct employer, if he did not sign Consol release). In sum, given the predicate condition of a threat by one contracting party against another contracting party, economic duress by a non-party to a contract does not appear easily amenable to concepts of “transference” in this case.20

20 We do not foreclose the possibility, however, in other cases.

Assuming, however, duress by a non-contracting party could be invoked to negate mutual assent between contracting parties, and assuming that the possibility of not receiving a raise greater than 1% is [*118] a cognizable economic loss, McDonald’s suggestion that unless she signed the release, she could potentially not receive such a raise is, on this record, too conjectural. See Litten, 220 Pa. Super. at 282, 286 A.2d at 917; Tri-State, 187 Pa. Super. at 20-21, 142 A.2d at 335 (holding duress is “more than a mere threat” of possible economic injury in indefinite future). McDonald notes she received only a 1% raise in February of 2007. See Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 13. But a minimal raise, after the fact, does not alone demonstrate that when McDonald signed the [**43] release in May 2006, she did so because she feared economic injury, i.e., not receiving a raise greater than 1%.

Having resolved that economic compulsion is not available to McDonald, we address Whitewater’s last two issues together: whether the release is valid and enforceable and thus bars McDonald’s claims. Whitewater asserts the release met all the elements of the Topp Copy/Employers Liability standard governing the validity of exculpatory clauses. Whitewater thus contends the trial court erred by denying summary judgment on liability. Whitewater, we hold, is entitled to relief.

In Chepkevich, our Supreme Court resolved “whether a skier may maintain a negligence action against a ski resort for injuries sustained while skiing or whether suit is barred by statute and/or a release signed by the skier.” Chepkevich, 607 Pa. at 3, 2 A.3d at 1175.

The Release, printed on a single page and titled “RELEASE FROM LIABILITY,” stated:

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to variations in snow and terrain, ice and icy conditions, moguls, rocks, debris (above and below the surface), bare spots, lift towers, poles, snowmaking [**44] equipment (including pipes, hydrants, and component parts), fences and the absence of fences and other natural and manmade objects, visible or hidden, as well as collisions with equipment, obstacles or other skiers. . . . All the risks of skiing and boarding present the risk of serious or fatal injury. By accepting this Season Pass I agree to accept all these risks and agree not to sue Hidden Valley Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 5, 2 A.3d at 1176.

The Chepkevich Court set forth the three elements of the Topp Copy/Employers Liability standard for determining the validity and enforceability of an exculpatory clause:

[HN12] It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), we noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear [**45] that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention [*119] of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Chepkevich, 607 Pa. at 26, 2 A.3d at 1189 (citations omitted). Our Supreme Court held the release was valid and enforceable, and concluded the release barred the skier’s negligence lawsuit.21 Id. at 3, 31, 35, 2 A.3d at 1175, 1192, 1195.

21 The Chepkevich Court also held that the skier’s lawsuit was alternatively barred by the Skier’s Responsibility Act, 42 Pa.C.S. § 7102. See Chepkevich, 607 Pa. at 25, 2 A.3d at 1188.

In Tayar, the plaintiff was injured while snow tubing at a ski resort. Tayar, 616 Pa. at 390, 47 A.3d at 1193. She raised claims of negligence and reckless conduct against the ski resort and one of its employees. Id. at 391, 47 A.3d at 1194 (summarizing trial court’s decision). In response, the defendants [**46] asserted the plaintiff’s claims were barred because she signed the following release:

CAMELBACK SNOW TUBING

ACKNOWLEDGMENT OF RISKS AND AGREEMENT NOT TO SUE

THIS IS A CONTRACT–READ IT

I understand and acknowledge that snow tubing, including the use of lifts, is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. I understand that part of the thrill, excitement and risk of snow tubing is that the snow tubes all end up in a common, runout area and counter slope at various times and speeds and that it is my responsibility to try to avoid hitting another snowtuber and it is my responsibility to try to avoid being hit by another snowtuber, but that, notwithstanding these efforts by myself and other snowtubers, there is a risk of collisions.

* * *

IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED TO PARTICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY CAMELBACK SKI CORPORATION IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT [**47] SUCH INJURIES ARE THE RESULT OF NEGLIGENCE OR ANY OTHER IMPROPER CONDUCT ON THE PART OF THE SNOWTUBING FACILITY.

Id. at 388-89, 47 A.3d at 1192-93. The trial court agreed with the defendants that the release absolved them of liability. Id. at 390-91, 47 A.3d at 1194. The plaintiff appealed to the Superior Court on, inter alia, whether the release exculpated defendants from reckless conduct. Id. at 391, 47 A.3d at 1194. The Superior Court, in an en banc decision, held that the release was limited to negligent conduct only. Id. (summarizing Superior Court’s holding).

The Tayar Court granted allowance of appeal to address, among other issues, whether the release barred the plaintiff’s claim for reckless conduct. Id. at 392, 47 A.3d at 1194. Our Supreme Court initially [*120] observed that “exculpatory clauses releasing a party from negligence generally are not against public policy.” Id. at 401, 47 A.3d at 1200. The Tayar Court held that the above release did not exculpate the defendants from reckless conduct because of the fundamental differences between negligence and recklessness. Id. at 403, 47 A.3d at 1201. Thus, our Supreme Court held that the plaintiff’s claim for reckless conduct could proceed. Id. at 406, 47 A.3d at 1203.

Regarding the first element needed for a valid exculpatory clause, Pennsylvania courts have affirmed exculpatory releases for “skiing and other inherently dangerous [**48] sporting activities,” such as snowtubing and motorcycle racing. See Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (citing Wang, supra, and Nissley, supra). Other activities include automobile racing,22 paintballing,23 and whitewater rafting.24 Thus, [HN13] Pennsylvania courts have held exculpatory clauses pertaining to inherently dangerous sporting activities do not “contravene any policy of the law.”25 Chepkevich, 607 Pa. at 29, 2 A.3d at 1191.

22 Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 140, 582 A.2d 1380, 1383 (1990) (affirming summary judgment in favor of defendant based on valid and enforceable exculpatory agreement signed by plaintiff).

23 Martinez v. Skirmish, U.S.A., Inc., Civ. No. 07-5003, 2009 U.S. Dist. LEXIS 51628, *34, 2009 WL 1676144, *12 (E.D. Pa. June 15, 2009) (holding release was valid and enforceable against plaintiff’s negligence claim).

24 Wroblewski v. Ohiopyle Trading Post, Civ. No. 12-0780, 2013 U.S. Dist. LEXIS 119206, at *30, 2013 WL 4504448, at *9 (W.D. Pa. Aug. 22, 2013) (concluding release signed by plaintiff exculpated whitewater rafting company for plaintiff’s negligence claim).

25 Courts have held invalid exculpatory clauses involving bailees, banks, and common carriers. Dilks, 411 Pa. at 434 n.9, 192 A.2d at 687 n.9 (citing cases).

With respect to the second element, our Supreme Court held [HN14] “[t]he validity of a contractual provision which exculpates a person from liability for his own acts of negligence is well settled if the contract is between persons relating entirely to their own private affairs.” Dilks, 411 Pa. at 433, 192 A.2d at 687. Lastly, the third element’s reference to “contracts of adhesion” may be problematic given different facts, as the Chepkevich Court acknowledged. Chepkevich, 607 Pa. at 28 n.18, 2 A.3d at 1190 n.18. The Chepkevich [**49] Court conceded that if the plaintiff “could not dicker over the terms of the form contract,” the release could have been a contract of adhesion. Id. But our Supreme Court emphasized, “such contracts executed in the course of voluntary participation in recreational activities have not been declared unenforceable on these grounds, presumably because we recognize an inherent policy-based distinction between ‘essential’ activities (such as signing a residential lease) and voluntary, nonessential ones (such as engaging in dangerous sports).” Id. Finally, [HN15] absent fraud, “failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.” Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citations omitted and alteration in original).

Instantly, Whitewater’s exculpatory clause addressing negligence does not contravene Pennsylvania’s public policy. See Tayar, 616 Pa. at 401, 47 A.3d at 1200; Chepkevich, 607 Pa. at 29, 2 A.3d at 1191. Pennsylvania state and federal courts have affirmed substantively identical clauses in other dangerous sporting activities, including whitewater rafting. See Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (collecting [*121] cases); see also Wroblewski, 2013 U.S. Dist. LEXIS 119206, at *30, 2013 WL 4504448, at *9. Second, the release between McDonald and Whitewater related entirely to her participation in a hazardous [**50] recreational activity. See Dilks, 411 Pa. at 433, 192 A.2d at 687. We acknowledge that McDonald chaperoned this trip and that, in general, chaperoning field trips, among other duties, was an “extra” duty inherent to working at the School of the Holy Child. See Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 14. But McDonald did not identify any materials issues of fact contradicting Sullivan’s deposition testimony that no teacher was compelled to chaperone any particular trip. See Ex. I to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 40-41. Indeed, McDonald did not dispute that an employee was not required to participate in extracurricular trips to demonstrate commitment to the community–one of four areas employees are evaluated in each year. See id. Lastly, identical to the plaintiff in Chepkevich, McDonald voluntarily engaged in a non-essential activity. See Chepkevich, 607 Pa. at 28 n.18, 2 A.3d at 1190 n.18. Accordingly, we hold Whitewater’s exculpatory clause is valid. See id. at 26, 2 A.3d at 1189.

As for the clause’s enforceability, we examine whether the clause “spells out the intention of the parties with particularity and shows the intent to release [Whitewater] from liability by express stipulation.” See id. at 30, 2 A.3d at 1191. The instant [**51] clause was titled “RELEASE OF LIABILITY — READ BEFORE SIGNING” “in capital letters in large font at the top,” identical to the Chepkevich release. See id. at 31, 2 A.3d at 1192. The language releasing Whitewater from liability was written in the same size font as the body of the release and required McDonald’s signature. See id.

Whether or not [McDonald] availed herself of the opportunity to read the Release she signed, we cannot agree that a full-page, detailed agreement, written in normal font and titled “RELEASE [OF] LIABILITY” constitutes an insufficient effort on the part of [Whitewater] to inform [McDonald] of the fact that, by signing [the release], she was giving up any right she might have to sue for damages arising from injuries caused even by negligence.

See id. Further, McDonald voluntarily engaged in whitewater rafting and Whitewater did not compel her to sign the release. See id. McDonald admittedly did not attempt to negotiate the terms of the release. See id. Accordingly, we conclude the release is enforceable. See id. Because the release is valid and enforceable, the trial court erred by denying Whitewater’s motion for summary judgment on liability and thus, Whitewater is due relief. See Charlie, 100 A.3d at 250. The [**52] order below is affirmed with respect to its holding that Pennsylvania law applies and reversed to the extent it held material issues of fact existed regarding Whitewater’s liability.

Order affirmed in part and reversed in part. Case remanded with instructions to grant judgment in favor of Whitewater and adverse to McDonald and for further proceedings, as deemed necessary. Jurisdiction relinquished.

Judgment Entered.

Date: 4/29/2015


Espinoza, Jr., v. Arkansas Valley Adventures, LLC; 2014 U.S. Dist. LEXIS 136102

Jesus Espinoza, Jr., Plaintiff, v. Arkansas Valley Adventures, LLC; Defendant.

Civil Action No. 13-cv-01421-MSK-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2014 U.S. Dist. LEXIS 136102

September 26, 2014, Decided

September 26, 2014, Filed

CORE TERMS: rafting, trip, undersigned, wrongful death, decedent’s, exculpatory provision, outfitter, exculpatory clause, summary judgment, white water, website, participating, genuine, raft, river, affirmative defense, material facts, misrepresentation, exculpatory, enforceable, unambiguous, whitewater, survived, heir, obstacles, matter of law, entitled to judgment, assumption of risk, burden of proof, personal representative

COUNSEL: [*1] For Jesus Espinoza, Jr., Plaintiff: William James Hansen, LEAD ATTORNEY, McDermott & McDermott, LLP, Denver, CO; George E. McLaughlin, Warshauer-McLaughlin Law Group, P.C., Denver, CO.

For Arkansas Valley Adventures, LLC, Defendant: Conor P. Boyle, Ryan L. Winter, Hall & Evans, LLC-Denver, Denver, CO.

JUDGES: Marcia S. Krieger, Chief United States District Judge.

OPINION BY: Marcia S. Krieger

OPINION

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court on the Defendant’s Motion for Summary Judgment (# 17), the Plaintiff’s Response (# 22), and the Defendant’s Reply (# 26).

I. JURISDICTION AND ISSUES PRESENTED

Sue Ann Apolinar died on a white water rafting trip conducted by Defendant Arkansas Valley Adventures (“AVA”). This action is brought by Ms. Apolinar’s son, Jesus Espinoza, who asserts three claims related to his mother’s death: (1) negligent, careless, and imprudent operation of a raft resulting in wrongful death; (2) negligence and negligence per se; and (3) fraud and misrepresentation.

AVA moves for summary judgment on all three claims. It seeks to dismiss any “survivorship” claim premised on C.R.S. § 13-20-101 for lack of capacity. In addition, it seeks judgment in its favor on all of Plaintiff’s [*2] claims based on its affirmative defense that Ms. Apolinar released AVA from liability and assumed all risks prior to the rafting trip. The Court exercises jurisdiction pursuant to 28 U.S.C. 1332. The issues are governed by Colorado law.

II. MATERIAL FACTS

Based upon the evidence submitted by the parties, which the Court construes most favorably to the Plaintiff, the material facts are summarized below. Where appropriate, the Court provides further explication explication in conjunction with its analysis.

Mr. Espinoza is Ms. Apolinar’s son. There is no evidence of record that an estate was created following Ms. Apolinar’s death or whether Mr. Espinoza acts in a fiduciary capacity for such estate.

AVA is a river outfitter licensed under C.R.S. § 33-32-104. It offers a number of river rafting trips of varying levels of difficulty. Among the trips it offers is “24 Hours in Brown’s Canyon,” which Ms. Apolinar booked based on her review of AVA’s website. She made reservations for herself, her significant other, her god-daughter, and Mr. Espinoza because “it looked like fun and was appropriate for [the group’s] level of experience.”

Before beginning the rafting trip, AVA required its participants to review and execute a document [*3] entitled “Rafting Warning, Assumption of Risk, and Release of Liability & Indemnification Agreement” (“Agreement”). Ms. Apolinar signed the Agreement for herself and for her minor son, Mr. Espinoza, on June 7, 2011 before beginning the trip.

On the second day of the trip, the raft carrying Ms. Apolinar capsized while navigating a rapid known as “Seidel’s Suck Hole.” Ms. Apolinar was ejected from the raft. An AVA guide pulled her back into the raft, but it capsized and ejected Ms. Apolinar, again. Ms. Apolinar was swept into a logjam, became entangled with the collection of tree logs and branches, and tragically drowned.

III. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Kaiser–Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if [*4] the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

IV. ANALYSIS

AVA’s motion raises a straight forward issue — are Ms. Espinoza’s claims barred by the exculpatory and release provisions of the Agreement executed by Ms. Apolinar. However, before addressing that question, AVA asks that the Court clarify the capacity in which Mr. Espinoza [*5] brings this action.

A. Capacity

As noted, Mr. Espinoza asserted three claims in the Amended Complaint: (1) negligent, careless, and imprudent operation of a raft resulting in wrongful death; (2) negligence and negligence per se; and (3) fraud and misrepresentation. None of these are brought for injuries to Mr. Espinoza1, only for the death of his mother.

1 Much of the parties’ argument addresses questions of Ms. Apolinar’s capacity to execute the Agreement for her son (then a minor), Mr. Espinoza. The Court need not address this debate because Mr. Espinoza is not asserting claims for injuries to him. He asserts claims for the death of his mother, which grow out of what she could have asserted had she survived, and therefore it is the Agreement that she executed for herself that is at issue.

Colorado law recognizes that claims can be brought on behalf of a decedent in two different capacities. The first type of claim is brought in a fiduciary capacity by the personal representative of the estate of the deceased person. C.R.S. § 13-20-101. Claims brought in this capacity are often referred to as “survival” claims. The personal representative “stands in the decedent’s shoes” in order to assert a claim that the [*6] decedent could have asserted had he or she been alive. The beneficiary of a survival claim is the decedent’s estate.

The second type of claim is brought by the decedent’s heir. Known as a wrongful death claim, it is created and limited by statute. C.R.S. § 13-21-201 et seq; see also Espinoza v. O’Dell, 633 P.2d 455, 462-466 (Colo. 1981). A wrongful death claim differs from a claim that a decedent could have asserted during his or her lifetime. A wrongful death claim arises only upon the decedent’s death, it addresses wrongful acts that caused the death, and the amount of recovery is limited by statute. C.R.S. § 13-21-203; Fish v. Liley, 120 Colo. 156, 208 P.2d 930, 933 (1949); Colorado Comp. Ins. Auth. v. Jorgensen, 992 P.2d 1156, 1164 n. 6 (Colo. 2000). To prove a wrongful death claim, an heir must establish that (1) the death of the decedent; (2) was caused by a wrongful act and 3) that the decedent would have been able to maintain an action for injuries, had the person survived. Stamp v. Vail Corp., 172 P.3d 437, 451 (Colo. 2007). A wrongful death claim is subject to the same limitations and defenses that would have applied to the claim had the decedent survived and brought the claim. Elgin v. Bartlett, 994 P.2d 411, 416 (Colo.1999); see also Lee v. Colo. Dep’t of Health, 718 P.2d 221, 233 (Colo.1986) ( comparative negligence of the decedent will reduce the recovery available in a wrongful death action brought by the decedent’s heirs).

The Amended Complaint does not clearly identify in what capacity Mr. Espinoza asserts the claims in this action, but in the absence [*7] of the representation that a probate estate has been created for Ms. Apolinar and that Mr. Espinoza is the appointed executor or personal representative, the Court assumes that he brings this action for wrongful death of his mother. Thus, the three claims are merely alternate theories of alleged wrongful conduct leading to wrongful death. With that clarification, the Court turns to AVA’s affirmative defense.

B. The Agreement

AVA argues that it is entitled to judgment on Mr. Espinoza’s wrongful death claim, regardless of the theory upon which it is premised, because Ms. Apolinar contractually released AVA from any claims and liability and assumed all risks associated with white water rafting. These arguments are in the nature of affirmative defenses upon which AVA bears the burden of proof. See Squires ex rel. Squires v. Goodwin, 829 F.Supp 2d 1062, 1071 (D. Colo. 2011).

There is no dispute that prior to the raft trip, AVA presented and Ms. Apolinar executed a two-page Agreement that provides in pertinent part:

2. Risks of Activity. The Undersigned agree and understand that taking part in the Activity can by HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. The Undersigned acknowledge that the Activity is inherently dangerous and fully realize the [*8] dangers of participating in the Activity. The risks and dangers of the activity include, but are not limited to: choice of rafting course, . . . choice of outfitter, negligence of rafting or climbing or zip lining guides, changing weather conditions, changing water conditions, cold water immersion, hidden underwater obstacles, trees or other above water obstacles, . . . changing and unpredictable currents, drowning, exposure, swimming, overturning, . . . entrapment of feet or other body parts under rocks or other objects . . . . THE UNDERSIGNED ACKNOWLEDGE AND UNDERSTAND THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING IN THE ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS.

3. Release, Indemnification, and Assumption of Risk. In consideration of the Participant being permitted to participate in the activity, the Undersigned agree as follows:

(a) Release. THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE, FOREVER DISCHARGE, AND AGREE NOT TO SUE OR BRING ANY OTHER LEGAL ACTION AGAINST THE RELEASED PARTIES with respect to any and all claims and causes of action of any nature whether currently known or unknown, which the Undersigned [*9] or any of them, have or which could be asserted on behalf of the Undersigned in connection with the Participant’s participation in the Activity, including, but not limited to claims of negligence, breach of warranty, and/or breach of contract.

(b) Indemnification. The Undersigned hereby agree to indemnify, defend and hold harmless the Released Parties from and against any and all liability, cost, expense or damage of any kind or nature whatsoever and from any suits, claims or demands including legal fees and expenses whether or not in litigation, arising out of, or related to, Participant’s participation in the Activity. Such obligation on the part of the Undersigned shall survive the period of the Participant’s participation in the Activity.

(c) Assumption of Risk. The Undersigned agree and understand that there are dangers and risks associated with participation in the Activity and that INJURIES AND/OR DEATH may result from participating in the Activity, including, but not limited to the acts, omissions, representations, carelessness, and negligence of the Released Parties. By signing this document, the Undersigned recognize that property loss, injury and death are all possible while [*10] participating in the Activity. RECOGNIZING THE RISKS AND DANGERS, THE UNDERSIGNED UNDERSTAND THE NATURE OF THE ACTIVITY AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE PARTICIPATION IN THE ACTIVITY, WHETHER OR NOT DESCRIBED ABOVE, KNOWN OR UNKNOWN, INHERENT, OR OTHERWISE.

As noted earlier, Mr. Espinoza’s wrongful death claim is subject to the defenses that could have been asserted against Ms. Apolinar, had she lived and brought the claim. The issue is whether the exculpatory provision in Paragraph 3(a) or the assumption of risk provision in Paragraphs 2 and 3(c) of the Agreement would have barred Ms. Apolinar’s claims. If so, Mr. Espinoza’s wrongful death claim is similarly barred.

The Court begins with the exculpatory provision of the Agreement. Colorado law favors enforcement of contracts, but exculpatory provisions that shield one party from its future negligence must be carefully scrutinized.2 Whether an exculpatory provision is enforceable is a question of law. In order to determine whether an exculpatory clause is enforceable, courts evaluate the four “Jones factors”3: “(1) the existence of a duty to the public; (2) the nature [*11] of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.”

2 Indeed, there are some types of conduct for which exculpatory clauses are never enforceable. For example, they cannot be used as a shield against a claim for willful and wonton negligence. See, e.g., Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo.2004); Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); Barker v. Colorado Region, 35 Colo. App. 73, 532 P. 2d 372 (1974).

3 These come from Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). Although colloquially referred to as “factors,” they really are not treated as such — they are not weighed, compared or tallied. Instead, they might be better understood as situations in which an exculpatory clause should not be enforced.

1. Duty to the Public

This factor focuses on whether the party seeking to enforce the contract (here, AVA) provided such a necessary and important service to the public that the releasing party (Ms. Apolinar) could not reasonably be expected to refuse the service in order to avoid the exculpatory provision. Drawing from Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444 (1963), Colorado law recognizes that when a service has great importance to the public and it is a matter of practical necessity to some members of the public, then the provider of the service has undue bargaining power in setting the terms of the contract. [*12] In such case, an exculpatory agreement may be void as an adhesion contract. See Jones, 623 P. 2d at 376; Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409 (D. Colo. 1994).

By their nature, recreational activities generally are not considered necessary public services. Instead, participation in these activities is optional. See, e.g., Chadwick, 100 P.3d at 467; Mincin v. Vail Holdings, Inc.., 308 F.3d 1105, 1110 (10th Cir. 2002); Potter, 849 F. Supp. at 1409. Indeed, at least one court has specifically found that white water rafting activities are not necessary public services. See Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo 1996).

Mr. Espinoza does not dispute this authority. Instead, he argues that because white water rafting is regulated by Colorado statute, it has a public aspect4, and that enforcement of the exculpatory clause in the Agreement would frustrate the purposes of regulation. Mr. Espinoza is quite correct that white water rafting enterprises are regulated under the Colorado River Outfitter’s Act (CROA), C.R.S. § 33-32-101 et seq. CROA makes it “unlawful any river outfitter, guide, trip leader, or guide instructor to (i) violate CROA’s safety equipment provisions; (ii) operate a vessel in a careless or imprudent manner without due regard for river conditions or other attending circumstances, or in such a manner as to endanger any person, property, or wildlife; or (iii) operate a vessel with wanton or willful disregard for the safety of persons or property. [*13] An outfitter or guide that does not comply with CROA’s safety obligations commits a misdemeanor. § 33-32-107.

4 Presumably, this argument is based on a sentence found in Tunkl‘s explanation of the types of services that might create public duties: “It concerns a business of a type generally thought suitable for public regulation.” Tunkl, 383 P2d at 444.

The regulation of white-water rafting enterprises, however, does not change the nature of the service that AVA provides. White water rafting is a purely recreational activity, as compared to an essential or necessary one. The rafter is free to decline the service if the rafter is unwilling to accept the terms of the exculpatory clause. Indeed, since CROA was enacted, several courts have enforced exculpatory agreements protecting white water rafting operators. See Lahey, 964 F. Supp. at 1446; Forman v. Brown, 944 P2d 559, 563-64 (Colo. App. 1996).

Furthermore, enforcement of the exculpatory provision does not logically or practically have any impact on regulation under CROA. There is Colorado authority that recognizes that when a statute defines the scope of civil liability, individuals cannot contract around it; however, such authority is not instructive here.

In Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996), the Colorado Court of Appeals compared the provision of the Colorado Premises Liability [*14] Act that made a landowner liable to invitees for damages caused by the “landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known”5 with conflicting exculpatory language in a lease, “Lessor shall not be responsible for any damage or injury said Lessee may sustain from any cause whatsoever unless injury is a direct result of the Lessor’s gross negligence.” The Court characterized the issue of the validity of the lease’s exculpatory clause as implicating competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts. Stanley, at 706 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989)). Ultimately, it held that where the General Assembly has expressed its intent in an area of clear public policy, a contract to the contrary is invalid.

5 C.R.S. §13-21-115(3)(c)(I).

However, the Stanley-type situation is not present here. CROA does not address the scope of civil liability of rafting operators.6 Rather, it provides for the creation of safety standards that are enforceable by criminal penalty. See C.R.S. §§ 33-32-107,108. If the exculpatory provision of the Agreement were to bar Mr. Espinoza’s wrongful death claim, Colorado nevertheless could implement its public policy under CROA [*15] by prosecuting and punishing AWA under the CROA safety standards. In fact, the record reflects that CROA enforcement occurred in this case. The Colorado State Parks (“CSP”) conducted an investigation, and found that all required safety equipment was on the trip, all equipment to was in serviceable condition, and all of the guides were qualified as required by Colorado law. CSP concluded that other than filing a late written report that there were “[n]o other violations of Colorado law”.

6 In this respect, CROA differs from the statutory schemes in other states cited by Mr. Espinoza in his Response to the Motion for Summary Judgment because those statutes establish the limits on civil liability for recreational outfitters, rather than a public right enforced through criminal penalties. See W. Va. Code Ann. § 20-3B-5 (West) (“No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by [statute or rule].”); Idaho Code Ann. § 6-1206 (West) (“No licensed [*16] outfitter or guide acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with the duties placed on him by [statute or rule].”).

Because rafting is not a necessary, public service and its regulation is unaffected by the terms of the exculpatory provision, this factor does not compel a determination of unenforceability.

2. Nature of Service Performed

Somewhat duplicative of the first factor, the second concerns the nature of the service that was performed. An exculpatory provision can be invalidated when “the activity can be described as an essential service.” See Lahey, 964 F.Supp. at 1445. The parties agree that white-water rafting is not an essential service. Thus, this factor does not invalidate the exculpatory provision in the Agreement.

3. Whether the Agreement was Fairly Entered Into

The third factor focuses on whether the party benefitted by the exculpatory clause overreached the releasing party. Colorado law specifies that a contract is “fairly entered into” if neither party is so obviously disadvantaged with respect to bargaining power [*17] that he/she is placed at the mercy of the other party’s negligence.” Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011). Simply because a contract is on a printed form and is offered on a “take-it-or-leave-it basis” does not necessarily make it unfair, especially when similar services can be obtained by another provider. See Jones, 623 P.2d at 375; Mincin, 308 F.3d at 1111; Hamill, 262 P.3d at 949. Analysis with regard to this factor turns on the particular facts surrounding the execution of the Agreement.

Mr. Espinoza argues that AVA defrauded Ms. Apolinar at the time she selected and reserved seats for the rafting trip. He contends that on its website, AVA misrepresented that the trip was for beginners and was safe for families on its website. In particular, he contends that AVA represented that this trip included no rapids rated higher than Class III rapids, when in reality one rapid known as Seidel’s Suck Hole was a Class IV rapid. He states that had Ms. Apolinar known that Seidel’s Suck Hole was a Class IV rapid, she would not have selected the particular rafting trip, participated in the trip or signed the Agreement.

The Court recognizes that there is a genuine dispute as to the difficulty level of Seidel’s Suck Hole and assumes that it was a Class IV rapid for purposes of this motion. The Court [*18] further assumes that AVA did not disclose the severity of the rapid to Ms. Apolinar on its website or later when Ms. Apolinar signed the Agreement. The nature of the omitted information (severity of the rapid) arguably was material to questions of risk of injury or death. Even if viewed as misrepresentation by omission (failure to disclose Seidel’s Suck Hole as a class IV rapid) or false representation (that Seidel’s Suck Hole was a Class III rapid), there is no evidence that suggests that Ms. Apolinar relied on such designation in executing the Agreement.

The chronology of events shows two independent decisions by Ms. Apolinar. She viewed the website and booked the trip online before traveling to Colorado. But, Ms. Apolinar executed the Agreement after she arrived in Colorado before the trip began. There is no evidence in the record addressing the manner in which the Agreement was presented to Ms. Apolinar or any representations made to her by AVA before or at the time of its execution. There is no evidence, for example, that an AVA employee told Ms. Apolinar that the Agreement or release language was not important, was not accurate, would not be enforced, or did not mean what it said. [*19]

Turning to the Agreement, it both applied to all rafting trips (not just the one Ms. Apolinar had chosen) and it described the risks in the contexts of all rafting activity. It characterizes all rafting activity as “HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH” and it states that there are particular risks and dangers that cannot be anticipated including changing water conditions, obstacles, currents, etc. In capitalized print, it states that “THE UNDERSIGNED ACKNOWLEDGE AND UNDERSTAND THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING IN THE ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS”. It also contains an integration and merger clause. Paragraph (6)(c) states that the Agreement’s representations “supersede prior contracts, arrangements, communications or representations, whether oral or written, between the parties relating to the subject matter hereof.”

Assuming that AVA’s website portrayed, and Ms. Apolinar believed, that the rafting trip she booked was safe for families before participating, she was presented with an Agreement that contained comprehensive, even dire, descriptions of the risks she was undertaking. There is no evidence [*20] that Ms. Apolinar relied on the website information in lieu of the risks outlined in the Agreement at the time she signed the Agreement, nor any evidence that she was misled or overreached by AVA employees. Faced with stark representations of risk in the Agreement, Ms. Apolinar could have cancelled her reservation and declined to participate in the rafting trip. Thus, the Court finds that Ms. Apolinar fairly entered into the Agreement. On this record, the Court cannot find that she was either overreached or defrauded. See Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 879 (10th Cir. 2013) (“Plaintiff has failed to provide any evidence that [her mother] relied on this misrepresentation in deciding to sign the Release.”).

4. Whether the Agreement is Clear and Unambiguous

The final “Jones factor” asks whether the exculpatory provision was clear and unambiguous. To evaluate this factor, a court “examine[s] the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” See Chadwick, 100 P.3d at 467.

Mr. Espinoza argues that Agreement is not clear and unambiguous because it is broad, unduly long, and obscures the key terms. The Court disagrees.

First, at less than two [*21] pages, the Agreement “is not inordinately long or complicated.” See Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 (10th Cir. 1997); Lahey, 964 F. Supp. at 1445 (concluding that a release agreement of “just over one page” was “short”).

Second, the Agreement repeatedly and clearly states that the signor is releasing AVA from liability. The title of the document is “RAFTING WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY AND INDEMNIFICATION AGREEMENT”. This is immediately followed by a directive, “PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY & WAIVER OF LEGAL RIGHTS.”

The body of the Agreement contains six main paragraphs titled in boldface print. For example: 2. Risks of Activity” and “3. Release, Indemnification and Assumption of Risk.” Key portions are printed in all capital letters. For example, the “Release” clause indicates the signor’s agreement to “THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE, FOREVER DISCHARGE , AND AGREE NOT TO SUE OR BRING ANY OTHER LEGAL ACTION AGAINST THE RELEASED PARTIES with respect to any and all claims and causes of action of any nature whether currently known or unknown, which the undersigned of any of them have or which could be asserted on behalf of the Undersigned in connection with the Participant’s [*22] participation in the Activity.” There is no legal jargon that impairs the meaning of this or other provisions.

Third, the Agreement clearly expresses intent for the release to apply to claims based on injury or death resulting from white water rafter, including the type of circumstances that led to Ms. Apolinar’s death. It expressly states there is a risk of physical injury or death and lists specific risks such as “trees or other above water obstacles,” drowning, overturning, and “entrapment of feet or other body parts under rocks or other objects.” The Court finds that the Agreement clearly and unambiguously articulates the intent of the parties to release AVA from all liability resulting from Ms. Apolinar’s participation in the rafting trip.

As explained above, none of the Jones factors compels a finding that the Agreement’s exculpatory clause is invalid. Thus, as a matter of law, the exculpatory clause would have barred claims for injury to Ms. Apolinar, had she survived. Similarly, it bars wrongful death claims by Mr. Espinoza as her heir. C.R.S. § 13-21-202; see also Rowan v. Vail Holdings, Inc., 31 F.Supp.2d 889, 895 (D. Colo. 1998) (“Colorado courts interpreting the statute hold, consistent with the plain language of the statute, that the right to bring a wrongful [*23] death claim is dependent on the decedent’s ability to have brought the claim.”). Because this action is barred, it is not necessary to address the parties’ arguments as to the Agreement’s assumption of risk provisions. As a matter of law, AVA is entitled to dismissal of all claims with prejudice.

IT IS HEREBY ORDERED that AVA’s Motion for Summary Judgment (#17) is GRANTED. AVA is entitled to judgment on its affirmative defense as against all claims of the Plaintiff. The Clerk shall enter judgment in favor of the Defendant and against the Plaintiff on all claims and close this case.

Dated this 26th day of September, 2014.

BY THE COURT:

/s/ Marcia S. Krieger

Marcia S. Krieger

Chief United States District Judge


Lahey v. Covington, 964 F. Supp. 1440 (Dist Colo 1996)

Lahey v. Covington, 964 F. Supp. 1440 (Dist Colo 1996)

Carol Lahey, Plaintiff, v. Rick Covington d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard, Defendants and Third-Party Plaintiffs, v. Rob Mobilian, Third-Party Defendant.

Civil Action No. 95 N 1396

United States District Court for the District of Colorado

964 F. Supp. 1440; 1996 U.S. Dist. LEXIS 21247

April 29, 1996, Decided

April 29, 1996, FILED; May 1, 1996, ENTERED

Disposition: [**1] Mobilian’s motion for judgment on the pleadings Granted.

Defendants’ motion for summary judgment Granted in part and Denied in part.

Counsel: For Carol Lahey, plaintiff: William A. Trine, Williams & Trine, P.C., Boulder, CO U.S.A.

For Twin Lakes Expeditions, Inc., a Colorado corporation, defendant: James V. Pearson, Pearson, Milligan & Horowitz, P.C., Denver, CO U.S.A. For Rick Covington, defendant: James V. Pearson, (See above). For Douglas (Blues) Voisard, defendant: James V. Pearson, (See above).

For Twin Lakes Expeditions, Inc., counter-claimant: James V. Pearson, Pearson, Milligan & Horowitz, P.C., Denver, CO U.S.A. For Rick Covington, counter-claimant: James V. Pearson, (See above). For Douglas (Blues) Voisard, counter-claimant: James V. Pearson, (See above).

For Twin Lakes Expeditions, Inc., third-party plaintiff: James V. Pearson, (See above). For Rick Covington, third-party plaintiff: James V. Pearson, (See above). For Douglas (BLUES) Voisard, third-party plaintiff: James V. Pearson, (See above).

For Carol Lahey, counter-defendant: William A. Trine, Williams & Trine, P.C., Boulder, CO U.S.A.

For Rob Mobilian, third-party defendant: Ira M. Long, Jr., Roos, [**2] Cohen & Long, P.C., Denver, CO U.S.A.

Judges: Edward W. Nottingham, United States District Judge

Opinion by: Edward W. Nottingham

Opinion:

[*1441] Order and Memorandum of Decision

This is a personal injury action. Plaintiff Carol Lahey alleges that she suffered serious injuries during a white-water rafting trip as a result of the negligence and willful and wanton conduct of Defendants and Third-Party Plaintiffs Rick Covington d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard [hereinafter “defendants”]. Defendants allege that, pursuant to an indemnity agreement, both plaintiff and Third-Party Defendant Rob Mobilian (“Mobilian”) are liable to defendants for any fees and costs they incur in connection with this lawsuit. The matter is before the court on (1) “Third-Party Defendant’s Motion for Judgment on the Pleadings” filed November 15, 1995, and (2) “Defendants’ and Third-Party Plaintiffs’ Motion for Summary Judgment” filed January 19, [*1442] 1996. Jurisdiction is based on 28 U.S.C.A. § 1332 (West 1993).

Facts

At all times relevant to this case, Covington owned and operated Twin Lakes Expeditions, Inc., a white-water rafting company located in Twin Lakes, Colorado. (Defs.’ and Third-Party [**3] Pls.’ Br. in Supp. of Mot. for Summ. J., Statement of Undisputed Material Facts P A [filed Jan. 19, 1996] [hereinafter “Defs.’ Summ. J. Br.”]; admitted at Pl.’s Mem. Br. in Opp’n to Defs.’ Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts P A [filed Feb. 5, 1996] [hereinafter “Pl.’s Resp. to Summ. J. Mot.”]; Mobilian’s Br. in Opp’n to Mot. for Summ. J., Resp. to Statement of Undisputed Facts [filed Feb. 9, 1995] [hereinafter “Mobilian’s Resp. to Summ. J. Mot.”] [incorporating “Pl.’s Resp. to Summ. J. Mot., Resp. to Undisputed Material Facts”].) At all times relevant to this case, Voisard worked for Twin Lakes as a rafting guide. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P B; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P B; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.)

At sometime prior to June 1, 1993, Mobilian scheduled a white-water rafting trip for himself and his family with Covington and Twin Lakes. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P C; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material [**4] Facts P C; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Mobilian is plaintiff’s brother. (See Answer, Countercl. and Third-Party Compl. P 15 [filed Sept. 15, 1995]; Am. Answer to Third-Party Compl. P 3 [filed Nov. 7, 1995].) On the morning of June 1, 1993, plaintiff, Mobilian, and family members arrived at Twin Lakes for the purpose of taking a white-water rafting trip. (See Pl.’s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 15-16].)

At the Twin Lakes office, plaintiff and Mobilian signed identical release agreements. (See Defs.’ Summ. J. Br., Exs. A [copy of release signed by plaintiff], B [copy of release signed by Mobilian].) Plaintiff did not read the release before she signed it. (Pl.’s Resp. to Summ. J. Mot. at 18.) The releases provided:

I recognize that there is a significant element of risk in whitewater rafting or any adventure expedition, sport or activity associated with the outdoors which I have voluntarily applied to participate in.

I fully understand that any activity associated with Twin Lakes Expeditions may include hazards and exposures connected in the outdoors which do involve risk and that I [**5] am aware of the risks and dangers inherent with the activities that I and/or my family, including any minor children, are involved in. I am mentally and physically capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility, including loss of control, collisions with other participants, trees, rocks, and other man made or natural obstacles, whether they are obvious or not obvious.

. . . .

As lawful consideration for being permitted by Twin Lakes Expeditions to participate in the activities involved, the undersigned, for himself and/or his heirs and assigns, hereby releases the State of Colorado, Bureau of Land Management, Twin Lakes Expeditions and employees of Twin Lakes Expeditions from any liability for claims or lawsuits brought by the undersigned and arising out of the activities provided by the concessioner.

I agree to defend, indemnify and hold harmless Twin Lakes Expeditions, the United States Forest Service and Parks Department, and all State or Government agencies, and private property [sic] the activities may be conducted on, and all of their officers, members, affiliated organizations, agents and employees [**6] for any injury or death caused by or resulting from me or my family’s participation in the activities associated with Twin Lakes Expeditions both scheduled and unscheduled whether or not such injury or death was caused by their negligence or from any other causes.

I assume complete and full responsibility for my family and myself, including any minor children, for bodily injury, loss of [*1443] life, loss of personal property and expenses thereof.

I have carefully read the agreement, fully understand and accept the terms and conditions explained and stated herein and acknowledge that this release shall be effective and legally binding upon me, my heirs, my estate, assigns[,] legal guardians and my personal representatives during the entire period of participation in the activities.

DO NOT SIGN THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.

(Id.)

After signing the releases, plaintiff, Mobilian, and the others embarked on a white-water rafting trip. (See Pl.’s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 21].) They went to the “Numbers” section of the Arkansas River. (See Am. Compl. in Tort for Damages P 10 [filed Aug. 24, 1995] [**7] [hereinafter “Am. Compl.”]; Answer, Countercl. and Third-Party Compl. P 10 [filed Sept. 15, 1995].) Plaintiff testified that, at the time of the trip, she understood that she faced the following risks: (1) she might fall into the river; (2) she might be swept away from her raft; (3) she might strike rocks in the river; and (4) she could be injured. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P F; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P F; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.).

Covington testified that, on June 1, 1993, “Numbers” were a Class IV-plus set of rapids. (Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 128 11. 16-18].) He described the condition of the river as “high” but not “any more challenging that day than any other day.” (Id., Ex. D [Covington Dep. at 136 11. 6-11].) On June 1, 1993, the water flow at the “Numbers” measured 3.8 feet high on the Scott’s Bridge Gauge. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P L; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P L; Mobilian’s [**8] Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) The Arkansas Headwater Recreation Area, apparently a white-water rafting regulatory group, recommends against commercial rafting through the “Numbers” when the water flow measures 4.0 feet high or more on the Scott’s Bridge Gauge. (Summ. J. Br., Statement of Undisputed Material Facts P M; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P M; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Covington testified that his company policy was not to take people rafting through the “Numbers” if the water was four feet high or more. (See Defs.’ Summ. J. Br., Ex. H [Covington Dep. at 160 1. 23 to 161 1.7]; Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 169 11. 4].) He explained that “anything up to [four] feet . . . was certainly not only acceptable, but a fine rafting level, exciting, and a guide’s favorite, if you want to put it that way.” (See Defs.’ Summ. J. Br., Ex. H [Covington Dep. at 161 ll. 4-7].)

During the trip, plaintiff was in a raft guided by Voisard. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P K; [**9] admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P K; Mobilian ‘s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) As plaintiff ‘s raft entered “rapid number 4,” Voisard was thrown out of the raft. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P N; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P N; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Shortly thereafter, the raft capsized, tossing plaintiff into the river. (Id.) Plaintiff maintains that, as she was swept through the rapids, she incurred multiple injuries and, as a result, has had to undergo surgery and physical therapy. (Am. Compl. P 29.)

On May 31, 1995, plaintiff filed a complaint against defendants in this court, alleging that defendants were liable for (1) negligence and (2) willful and wanton conduct. (See Compl. [filed May 31, 1995].) On August 24, 1995, plaintiff filed an amended complaint, in which she corrected her allegation regarding Covington’s residence. (See Am. Compl.) [*1444] On September 15, 1995, defendants filed an answer to the amended complaint, a [**10] counterclaim against plaintiff, and a third-party complaint against Mobilian. (See Answer, Countercl. and Third-Party Compl.) In their counterclaim, defendants assert that, according to the terms of the release agreement, plaintiff is obligated to indemnify defendants for “all of their damages, attorneys’ fees, costs and other expenses incurred as a result of” her participation in the June 1, 1993, rafting trip. (See id. at 7-8.) Similarly in their third-party claim against Mobilian, defendants assert that, according to the terms of the release agreement, Mobilian must indemnify defendants for all of the fees and costs they incur in connection with this lawsuit.

The motions currently before the court present the following three issues:

(1) whether the release agreement bars plaintiff’s negligence claims; (2) whether plaintiff has presented evidence that defendants acted willfully and wantonly; (3) whether, by signing the release agreement, plaintiff and Mobilian agreed to indemnify defendants for their expenses in connection with this lawsuit. In his motion for judgment on the pleadings, Mobilian argues that the release agreement is unclear and ambiguous and counter to public [**11] policy and, thus, does not obligate him to indemnify defendants. In their motion for summary judgment, defendants maintain that: (1) plaintiff’s negligence claims are barred by the release agreement; (2) plaintiff has not presented evidence that defendants acted willfully and wantonly in taking her on the rafting trip; and (3) Mobilian is obligated to indemnify defendants for their expenses in connection with this lawsuit. I begin with the issues raised in defendants’ motion for summary judgment.

ANALYSIS

1. Defendants’ Motion for Summary Judgment

a. Legal Standard

Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and the . . . moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Concrete Works, Inc. v. City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004, 131 L. Ed. [**12] 2d 196, 115 S. Ct. 1315 (1995). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324, 106 S. Ct. at 2553, see Fed. R. Civ. P. 56(e). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S. Ct. 77, 88 L. Ed. 2d 63 (1985). Additionally, the factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int’l, Inc. v. First Affiliated [**13] Sec., Inc., 912 F.2d 1238, 1241 [10th Cir. 1990]).

b. Negligence

Colorado law disfavors exculpatory agreements such as the release agreement at issue here. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989) (en banc). Thus, they are strictly construed against the drafter. Anderson v. Eby, 998 F.2d 858, 861 (10th Cir. 1993) (quoting Jones v. Dressel, 623 P.2d 370, 376 [Colo. 1981] [en banc]); Potter v. National Handicapped Sports , 849 F. Supp. 1407, 1409 (D. Colo. 1994). Nevertheless, an exculpatory agreement is “not necessarily void . . . as long as one party [*1445] is not ‘at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.’” Heil Valley Ranch, Inc., 784 P.2d at 784 (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 482 [5th ed. 1984].) The release agreement at issue here is not the sort where one party is at so great a disadvantage as to render the agreement void. See Jones, 623 P.2d at 374-75.

In determining whether an exculpatory agreement is valid, the court must consider the following four factors: “’(1) [**14] the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.’” Id. at 784 (quoting Jones, 623 P.2d at 376). Whether an exculpatory agreement is valid is a question of law for the court. Jones, 623 P.2d at 376; Potter, 849 F. Supp. at 1409. “For an exculpatory agreement to fail under the first factor, the party seeking exculpation must be engaged in providing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.” Potter, 849 F. Supp. at 1409. Such is not the case here. As in Potter, the activity at issue—white-water rafting—is recreational in nature. Thus, “by definition and common sense, it is neither a matter of great public importance nor a matter of practical necessity.” Id. (citing Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 [D. Colo. 1992]).

The second factor, “the nature of the activity,” involves an assessment of whether the activity can be described as an “essential service.” See Potter, [**15] 849 F. Supp. at 1410; Jones, 784 P.2d. at 784. Clearly white-water rafting is neither. See Potter, 849 F. Supp. at 1409. Regarding the third factor, plaintiff testified that she does not feel that she was treated unfairly by Twin Lake’s requirement that she sign the release form before going on the rafting trip. (Def.’s Summ. J. Br., Ex. G [Pl.’s Dep. at 131 l. 23 to 132 l.

1].) Because plaintiff has presented no evidence which contradicts her testimony, I conclude that she entered into the release fairly. Thus, only the fourth factor, whether the terms of the exculpatory agreement are clear and unambiguous, remains to be considered.

The release agreement in this case is short (just over one page), written in simple, clear terms, free of legal jargon, and uncomplicated. Thus, under the standard expressed in Heil Valley Ranch, Inc., it appears to be clear and unambiguous. See Heil Valley Ranch, Inc., 784 P.2d at 785; see also Potter, 849 F. Supp. at 1410. Plaintiff maintains, however, that the agreement is not clear because, even if she had read it, n1 it would not have fully apprised her of the risks she would encounter on the rafting trip. Specifically, plaintiff [**16] complains that the release did not inform her of the following: (1) she would not be given an opportunity to observe “rapid number 4” before proceeding through it; (2) she would not be given an opportunity to determine what risks were inherent in “rapid number 4” before proceeding through it; (3) she would not be given an opportunity to walk around “rapid number 4” instead of rafting through it; and (4) Voisard could fall out of the raft and, consequently, be unable to direct and navigate the raft. (See Pl.’s Resp. to Summ. J. Mot. At 16.)

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 Even though plaintiff did not read the agreement before signing it, she is nevertheless bound by its terms since there is no evidence that she was fraudulently induced to sign it. See Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Colorado law does not require that an exculpatory agreement describe in detail each specific risk that the signor might encounter. See Heil Valley Ranch, Inc., 784 P.2d at 785; see also Potter, 849 F. Supp. [**17] at 1410-11. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim. See id.

Plaintiff asserts that the above-listed risks of which she allegedly was not informed were the product of defendants’ negligence. (Pl.’s Resp. to Summ. J. Mot. at 16.) The release agreement states in plain language, however, that plaintiff agreed to “hold harmless Twin Lakes Expeditions . . . and all of [its] officers . . . and employees for any injury . . . whether [*1446] or not such injury . . . was caused by their negligence. . . . “ (Defs.’ Summ. J. Br., Ex. A [copy of release agreement signed by plaintiff] [emphasis supplied].) Thus, the exculpatory agreement clearly reflects an intent to preclude claims based on defendants’ negligence. See Potter, 849 F. Supp. at 1411.

I conclude that the exculpatory portion of the release agreement is valid as a matter of law. See Heil Valley Ranch, Inc., 784 P.2d at 784; Jones, 623 P.2d at 378; see also Anderson, 998 F.2d at 861-62; Potter, 849 F. Supp. at 1410.

Consequently, it bars plaintiff’s claims to the extent that they are based on defendants’ [**18] alleged negligence. See id. Accordingly, defendants are entitled to summary judgment on plaintiff’s negligence claims. See id.c.

Willful and Wanton Conduct

In Colorado, “willful and wanton conduct” is conduct which an actor realizes is highly hazardous and poses a strong probability of injury to another but nevertheless knowingly and voluntarily chooses to engage in. See Steeves v. Smiley, 144 Colo. 5, 354 P.2d 1011, 1013-14 (Colo. 1960); Hodges v. Ladd, 143 Colo. 143, 352 P.2d 660, 663 (Colo. 1960) (en banc); Colo. Rev. Stat. § 13-21-102(1)(b) (1987) (concerning exemplary damages). Here, plaintiff claims that defendants are liable for willful and wanton conduct because they concealed from her the fact that the risks she would face on the rafting trip were greater that those usually involved in white-water rafting. (See Pl.’s Resp. to Summ. J. Br. at 13-14.) She maintains that “defendants knew that the [’Numbers’] stretch of the river was extremely dangerous and that only skilled and experienced rafters could safely maneuver the rapids.” (See id. at 13.)

Plaintiff’s claim, however, is wholly unsupported by the record. Plaintiff presents no evidence [**19] that defendants knew that the risks posed by rafting through the “Numbers” were greater than usual for the sport of white-water rafting, let alone any evidence that the risks were, in fact, greater. To the contrary, Covington’s uncontroverted testimony is that the river ‘s water-height on the day of plaintiff’s trip was appropriate for rafting according to industry standards as well as his company policy, and that the “Numbers” was not any more dangerous on June 1, 1993, than on any other day. (See Def.’s Summ. J. Br., Ex. H [Covington Dep. at 160 l. 21 to 164 l. 25]; Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 136 ll. 6-12].) Plaintiff has introduced nothing to suggest that defendants did not believe that, in taking plaintiff on the rafting trip, they were acting (1) in conformance with industry standards, (2) in conformance with their company standards, and (3) in what they knew to be a reasonably safe manner, given the nature of white-water rafting. Thus, because plaintiff has failed to introduce evidence that defendants’ conduct rises to the level of willful and wanton, I conclude that defendants are entitled to summary judgment on that claim. Concrete [**20] Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554).

d. Indemnity

As indicated above, defendants maintain that, by signing the release agreement, plaintiff agreed to indemnify them for their attorneys’ fees and other expenses incurred in connection with this lawsuit. Similarly, defendants argue that, because Mobilian is plaintiff’s brother, the indemnity clause in the release agreement obligates him to indemnify defendants for any costs they incur in connection with this lawsuit, including attorneys’ fees and costs.

In general, indemnity agreements, like exculpatory agreements, are strictly construed under Colorado law. Public Serv. Co. of Colo. v. United Cable Television of Jeffco, Inc., 829 P.2d 1280, 1284 (Colo. 1992) (en banc). For an indemnity agreement to be enforceable, it must contain clear and unequivocal language which manifests the parties’ intent that the indemnitee be indemnified for the expenses at issue. See id.; Williams v. White Mountain Constr. Co., Inc. , 749 P.2d 423, 426 (Colo. 1988) (en banc).

Here, the relevant language provides, “I agree to . . . indemnify [defendants] . . . for any injury or [**21] death caused by or resulting from me or my family’s participation [*1447] [in the rafting activity].” (Defs.’ Summ. J. Br., Exs. A [copy of release signed by plaintiff], B [copy of release signed by Mobilian].) That language does not clearly and unequivocally state that the signor agrees to pay the attorney’s fees and costs associated with a lawsuit such as this. In fact, it seems more likely that the clause means that the signor agrees to pay expenses such as medical bills which result from her or her family member’s physical injury during a rafting trip. Further, with respect to defendant’s claim against Mobilian, the term “family” is not clearly and unequivocally broad enough to encompass the signor’s adult sister as opposed to only the signor’s spouse and children. Thus, I conclude that the language of the indemnity clause does not obligate plaintiff or Mobilian to indemnify defendants for the attorneys’ fees and other expenses they incur in connection with this lawsuit. See Public Serv. Co. of Colo., 829 P.2d at 1284; Williams, 749 P.2d at 426. Accordingly, defendants’ summary judgment motion is denied on the issue of plaintiff’s and Mobilian’s indemnity obligations. [**22] I need not reach the parties’ further arguments on that issue.

2. Mobilian’s Motion for Judgment on the Pleadings

As indicated above, Mobilian moves for judgment on the pleadings with respect to his obligation to indemnify defendants for their attorneys’ fees and other expenses incurred in connection with this lawsuit. A motion for judgment on the pleadings is a motion to dismiss that is filed after the pleadings are closed.

Fed. R. Civ. P. 12(c); 2A James W. Moore, Moore’s Federal Practice P 12.15 (2d ed. 1995). The standard of review for such a motion is as follows:

For purposes of the motion, all well-pleaded material allegations of the non-moving party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not deemed admitted. On the basis of the facts so admitted, the court may grant judgment only if the moving party is clearly entitled to judgment. 2A Moore P 12.15; Hamilton v. Cunningham, 880 F. Supp. 1407, 1410 (D. Colo. 1995). I therefore accept as true all allegations set forth by defendants. See id. “A judgment on the pleadings is appropriate [**23] when, even if all allegations in the complaint are true, the moving party is entitled to judgment as a matter of law.” Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993) (citation omitted).

Here, for the reasons explained in the previous section, I conclude as a matter of law that Mobilian is not obligated to indemnify defendants for their expenses in connection with this lawsuit. Accordingly, Mobilian’s motion for judgment on the pleadings is granted.

3. Conclusion

Based on the foregoing, it is therefore

ORDERED as follows:

1. Mobilian’s motion for judgment on the pleadings is GRANTED.

2. Defendants’ motion for summary judgment is GRANTED in part and DENIED in part.

3. Defendants’ motion for summary judgment is GRANTED with respect to plaintiff’s claims of negligence and willful and wanton conduct.

4. Defendants’ motion for summary judgment is DENIED with respect to defendants’ claim that plaintiff and Mobilian are obligated to indemnify defendants for their attorneys’ fees and other costs incurred in connection with this lawsuit.

5. Defendants’ third-party claim is hereby dismissed.

Dated this 29 day of April, 1996.

By The [**24] Court:

Edward W. Nottingham

United States District Judge


Dolores River Boating Advocates needs another Board Member: Join and maybe save a river

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Wanted: DRBA Board Member!
5d9a53e1-c120-445d-bc63-272e65b0f512.pngAre you interested in joining this lively crew?

Dolores River Boating Advocates (DRBA) is seeking a new Board of Directors’ Member who is interested in helping support and further our mission, which is to “optimize flows, restore the natural environment, and permanently protect the Dolores River for whitewater boating.”


 Currently DRBA has a seven-member Board of Directors, all of whom are very active in the forward movement and efficacy of DRBA. At this point in time, our board consists entirely of boating and river enthusiasts. And while we feel this is important to our mission, we are also open and interested in adding a Board Member who appreciates our work but who may not necessarily belong to the “boating community”. We feel we are at a point in our organizational growth where a Board Member with particular expertise in non-profit budgets is of utmost importance to our continued progress. In particular, DRBA seeks someone with the following qualifications:

· Experience with non-profit budgets
· Financial reporting and bookkeeping knowledge and experience
· Familiarity (and preferably competence) with Quickbooks 2012
· Critical thinking skills
· Open-mindedness
· Excellent interpersonal and communication skills
· Honesty and confidence, especially in a group setting
· Passionate about conservation of rivers and wild landscapes

We at DRBA have a lot of fun, and we also work very hard to attain our goals. All board members are active in our meetings, events, fundraising, and various planning and outreach activities. This commitment is appreciated and expected from our Board Members. We work closely with our paid staff person, Lee-Ann Hill, who serves as our Program Coordinator. Ms. Hill is a consummate professional, steeped in the skills and knowledge needed to lead DRBA as we venture into several stout and vital projects in 2015. Our most prized project for 2015 is the creation of a documentary film about the Dolores River. We believe that our work is making a difference in boating and river awareness related to the Dolores River. Below is a list of our accomplishments in 2014 and a list of goals for 2014 and beyond.

All interested parties are encouraged to contact myself, Sam Carter, DRBA Board of Directors President, via email (sam) or phone (907-739-3275) at your earliest convenience. We will begin a conversation to see if there exists a potential match between yourself and DRBA.

We are proud of and excited about the work we are doing at DRBA. Consider joining us as a Board Member!

Sincerely,
Sam Carter


DRBA’s Current Projects, Recent Accomplishments and Future Goals

Projects and Accomplishments:

  • Obtained 501 (c) 3 status in 2013
  • Trained a cadre of volunteer river rangers in 2013 to take the place of a BLM river ranger below McPhee Reservoir after federal funding was slashed
  • Worked with the U.S. Forest Service to enhance a current boating put-in and build a new put-in between Dolores and Stoner, CO (where no proper access is available)
  • Worked with an upstream rancher on the Dolores River to build two safe pass-through river fences to keep his cattle contained and assure safety for whitewater boaters
  • Submitted comments regarding the important and emerging Colorado State Water Plan
  • Conducted river clean-up activities in the Town of Dolores and upriver with Trout Unlimited
  • Provided and secured financial support for the operation of the USGS Slick Rock River Gage operations on the Lower Dolores
  • Conducted Tamarisk removal project with Paradox Valley School and the Dolores River Restoration Partnership in the Dolores River Wilderness Study Area
  • Host annual ‘Permit Party’ for regional boating community to promote whitewater access and advocacy
  • Offer Leave No Trace and river stewardship activities to local schools and adults
  • Produce monthly radio show, “The River Trip”, about the Dolores River, including recent interview with river champion Katie Lee
  • Produce monthly DRBA e-newsletters highlighting stories and issues involving the Dolores River
  • Active participant in the Lower Dolores Working Group’s Steering Committee
  • Participate in discussions regarding federal legislation for a National Conservation Area (NCA) for the Lower Dolores River
  • Offer free raft rides to the public at the Dolores River Festival in June every year
  • Sponsor a water quality monitoring site on the Dolores River for River Watch, a national program that monitors the health of rivers
  • Secured grant from Patagonia to produce film about the Dolores River!

Future Goals (2015 and Beyond):

  • Continue our educational, stewardship, outreach, advocacy projects and programs
  • Planning an “Adopt a River Section” program to annually clean and maintain river camps on the Lower Dolores River from the confluence of the San Miguel and Dolores Rivers to the confluence with the Colorado River
  • Production of a new river guide for the upper and lower Dolores River and San Miguel Rivers from their headwaters to the confluence of the Colorado River. Proceeds will fund future DRBA education, stewardship, advocacy, outreach and operational costs
  • Attract national attention to the Dolores River with documentary film sponsored by Patagonia, Osprey and other sponsors.

Want to Get Out, Have Fun, Meet Great People and Get Educated?

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Dates don’t fit your schedule? Call CFI today 800-860-5262 and create an extraordinary custom canyon country vacation for just your family or group! Our calendar fills quickly so plan ahead with 14 days advance notice for day trips, and 60 days for multi-day trips.

Join us this fall for a trip or seminar on the Colorado Plateau. It’s a great time of year to visit Southeast Utah. Reserve your space for a unique trip, seminar, or tour today!
Wildlife of Canyonlands National Park 1-Day Seminar for the Park’s 50th AnniversarySeptember 20, 2014.It’s Canyonlands National Park’s 50th anniversary month! Get to know the wildlife that inhabit the Park’s grand landscape.

The Wildlife of Canyonlands National Park day-seminar will be led by Dr. Tim Graham, a biologist formerly with the US Geological Survey staff in Moab. Explore a variety of habitats in and near the Needles District of Canyonlands National Park. Celebrate and examine the diversity of small animals living in these semi-arid environments.

Call: 800-860-5262 – 435-259-7750.

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Book Cliffs/Three Canyon ArchaeologySeptember 27-28, 2014. Lead by CFI with Dr. Carol Patterson and John Weisheit. This is a rare opportunity to explore the lesser visited area of the Bookcliffs near the Colorado border and to see incredible native rock art spanning 8000 years and historic trapper inscriptions. Learn about ranching families, cattle and sheep “wars”, about geologic formations and how the current area is earmarked for development. Bed and breakfast stay at rustic Three Canyons Ranch is included. Call 800-860-5262 or 435-259-7750. Click for more information. Email:

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Lost World of Range Creek – Sold out!Call 800-860-5262 or 435-259-7750 about 2015 dates.Click for more information.
Cedar Mesa/Comb Ridge Archaeology Trip -Sold out! Call 800-860-5262 or 435-259-7750 about 2015 dates. Click for more information.
Half-day tours every weekend through October
Moab’s Ancient Past Rock Art TourFridays, Saturdays and Sundays 8:30 a.m. to 12:30 p.m. Call 800-860-5262 or 435-259-7750. Click for more information.
Sunset Tour of Arches National Park Fridays, Saturdays and Sundays 4:00 to 8:00 p.m. Call 800-860-5262 or 435-259-7750. Click for more information.
Need different dates? Plan a private, custom trip!We can help you plan a private, custom trip for a unique adult or family adventure.info, or call us at 800-860-5262 or 435-259-7750.

Commercial Summer Fatalities: 2014

Our condolences to the families of the deceased.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Whitewater fatalities are light blue

Medical fatalities are light red

This is up to date as of September 14, 2014

If this information is incorrect or incomplete please let me know. Thank You.

Date

State

Activity

Where

How

Outfitter or Guide Service

Sex

Home

Age

Source

Source

5/28

AZ

Whitewater Kayaking

Colorado River, Grand Canyon, Badger Rapid

Did not right his kayak

 

M

 

43

http://rec-law.us/SVpdfb

 

6/3

AZ

Whitewater Rafting

Colorado River, Grand Canyon

Allergic reaction

 

F

Seattle, WA

54

http://rec-law.us/1l4xk4K

 

6/7

CO

Whitewater Rafting

Clear Creek

Fell out of raft, possible respirator problems

 

M

Brighton, CO

41

http://rec-law.us/1uEp3Fc

http://rec-law.us/1rafOwq

6/10

CO

Whitewater Rafting

Arkansas River, Salt Lick

boat flipped or dump trucked

Royal Gorge Rafting

M

Enid, OK

48

http://rec-law.us/1spBsRI

http://rec-law.us/1niITC2

6/14

CO

Whitewater Rafting

Arkansas River, Royal Gorge

respiratory problems before he and five other rafters were tossed out

 

M

Colorado Springs, CO

44

http://rec-law.us/1nl63ZF

http://rec-law.us/1lXMEAj

6/16

CO

Whitewater Rafting

Roaring Fork river

Fell out of raft

Blazing Adventures

M

Denver, CO

44

http://rec-law.us/1lB7jey

 

6/27

ID

Whitewater Rafting

Salmon River, The Slide

Ejected from raft

Epley’s Whitewater Adventure

M

Poulsbo, WA

50

http://rec-law.us/1x79IAj

http://rec-law.us/1qPcLds

7/15

WY

Mountaineering

Grand Teton

Fell

Jackson Hole Mountain Guides

F

Edmond, OK

43

http://rec-law.us/1spEHaK

http://rec-law.us/1nbZH2J

7/24

CO

Whitewater Rafting

Arkansas River, The Numbers

Fell out of raft

Timberline Tours

F

Dallas, TX

57

http://rec-law.us/1lC3ReN

http://rec-law.us/1pmumpZ

9/13

TN

Whitewater Rafting

Ocoee River

Raft flipped

Endless River Adventures

M

Clayton, NC

50

http://rec-law.us/1tTRGT9

http://rec-law.us/1oNpJWi

Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.

If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.

What do you think? Leave a comment.

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

Copyright 2014 Recreation Law (720) 334 8529

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

 

#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, Whitewater Rafting, Rafting, Commercial, Commercial Raft Company, Commercial , Endless River Adventures, Timberline Tours, Jackson Hole Mountain Guides, Epley’s Whitewater Adventure, Blazing Adventures, Royal Gorge Rafting, Guide Service,

 

 

WordPress Tags: Commercial,Summer,Fatalities,condolences,families,information,news,Whitewater,Medical,Thank,Date,State,Where,Outfitter,Guide,Service,Home,Source,Colorado,River,Grand,Canyon,Badger,Rapid,SVpdfb,Allergic,reaction,Seattle,Clear,Creek,Fell,respirator,Brighton,Arkansas,Salt,Lick,boat,Royal,Gorge,Enid,Springs,Fork,Adventures,Denver,Salmon,Slide,Epley,Adventure,Poulsbo,Teton,Jackson,Hole,Mountain,Guides,Edmond,Numbers,Timberline,Tours,Dallas,Ocoee,Raft,Clayton,Several,immersion,death,Wikipedia,Cold,response,graph,recreation,Leave,Twitter,LinkedIn,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,Tourism,AdventureTourism,RiskManagement,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,Camps,YouthCamps,Areas,Negligence,SkiLaw,Outside,AttorneyatLaw,RecLaw,RecLawBlog,RecreationLawBlog,HumanPoweredRecreation,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Challenge,Course,Ropes,Line,Rock,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Samaritan,Company

 


Commercial Summer Fatalities: 2014

Our condolences to the families of the deceased.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Whitewater fatalities are light blue

Medical fatalities are light red

This is up to date as of July 27, 2014

If this information is incorrect or incomplete please let me know. Thank You.

Date

State

Activity

Where

How

Outfitter or Guide Service

Sex

Home

Age

Source

Source

5/28

AZ

Whitewater Kayaking

Colorado River, Grand Canyon, Badger Rapid

Did not right his kayak

 

M

 

43

http://rec-law.us/SVpdfb

 

6/3

AZ

Whitewater Rafting

Colorado River, Grand Canyon

Allergic reaction

 

F

Seattle, WA

54

http://rec-law.us/1l4xk4K

 

6/7

CO

Whitewater Rafting

Clear Creek

Fell out of raft, possible respirator problems

 

M

Brighton, CO

41

http://rec-law.us/1uEp3Fc

http://rec-law.us/1rafOwq

6/10

CO

Whitewater Rafting

Arkansas River, Salt Lick

boat flipped or dump trucked

Royal Gorge Rafting

M

Enid, OK

48

http://rec-law.us/1spBsRI

http://rec-law.us/1niITC2

6/14

CO

Whitewater Rafting

Arkansas River, Royal Gorge

respiratory problems before he and five other rafters were tossed out

 

M

Colorado Springs, CO

44

http://rec-law.us/1nl63ZF

http://rec-law.us/1lXMEAj

6/16

CO

Whitewater Rafting

Roaring Fork river

Fell out of raft

Blazing Adventures

M

Denver, CO

44

http://rec-law.us/1lB7jey

 

6/27

ID

Whitewater Rafting

Salmon River, The Slide

Ejected from raft

Epley’s Whitewater Adventure

M

Poulsbo, WA

50

http://rec-law.us/1x79IAj

http://rec-law.us/1qPcLds

7/15

WY

Mountaineering

Grand Teton

Fell

Jackson Hole Mountain Guides

F

Edmond, OK

43

http://rec-law.us/1spEHaK

http://rec-law.us/1nbZH2J

7/24

CO

Whitewater Rafting

Arkansas River, The Numbers

Fell out of raft

Timberline Tours

F

Dallas, TX

57

http://rec-law.us/1lC3ReN

http://rec-law.us/1pmumpZ

Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.

If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.

What do you think? Leave a comment.

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

Copyright 2014 Recreation Law (720) 334 8529

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

 

 

#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, Whitewater Rafting, Rafting, Commercial, Commercial Raft Company, Commercial Guide Service,

 

 

WordPress Tags: Commercial,Summer,Fatalities,condolences,families,information,news,Whitewater,Medical,Thank,Date,State,Where,Outfitter,Guide,Service,Home,Source,Colorado,River,Grand,Canyon,Badger,Rapid,SVpdfb,Allergic,reaction,Seattle,Clear,Creek,Fell,respirator,Brighton,Arkansas,Salt,Lick,boat,Royal,Gorge,Enid,Springs,Fork,Adventures,Denver,Salmon,Slide,Epley,Adventure,Poulsbo,Teton,Jackson,Hole,Mountain,Guides,Edmond,Numbers,Timberline,Tours,Dallas,Several,immersion,death,Wikipedia,Cold,response,graph,recreation,Leave,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,Tourism,AdventureTourism,RiskManagement,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,Camps,YouthCamps,Areas,Negligence,SkiLaw,Outside,AttorneyatLaw,RecLaw,RecLawBlog,RecreationLawBlog,HumanPoweredRecreation,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Challenge,Course,Ropes,Line,Rock,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Samaritan,Raft,Company

 


Commercial Summer Fatalities: 2014

Our condolences to the families of the deceased.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Whitewater fatalities are light blue

Medical fatalities are light red

This is up to date as of July 1, 2014

If this information is incorrect or incomplete please let me know. Thank You.

Date

State

Activity

Where

How

Outfitter or Guide Service

Sex

Home

Age

Source

Source

5/28

AZ

Whitewater Kayaking

Colorado River, Grand Canyon, Badger Rapid

Did not right his kayak

 

M

 

43

http://rec-law.us/SVpdfb

 

6/3

AZ

Whitewater Rafting

Colorado River, Grand Canyon

Allergic reaction

 

F

Seattle, WA

54

http://rec-law.us/1l4xk4K

 

6/7

CO

Whitewater Rafting

Clear Creek

Fell out of raft, possible respirator problems

 

M

Brighton, CO

41

http://rec-law.us/1uEp3Fc

http://rec-law.us/1rafOwq

6/10

CO

Whitewater Rafting

Arkansas River, Salt Lick

boat flipped or dump trucked

Royal Gorge Rafting

M

Enid, OK

48

http://rec-law.us/1spBsRI

http://rec-law.us/1niITC2

6/14

CO

Whitewater Rafting

Arkansas River, Royal Gorge

respiratory problems before he and five other rafters were tossed out

 

M

Colorado Springs, CO

44

http://rec-law.us/1nl63ZF

http://rec-law.us/1lXMEAj

6/16

CO

Whitewater Rafting

Roaring Fork river

Fell out of raft

Blazing Adventures

M

Denver, CO

44

http://rec-law.us/1lB7jey

 

6/27

ID

Whitewater Rafting

Salmon River, The Slide

Ejected from raft

Epley’s Whitewater Adventure

M

Poulsbo, WA

50

http://rec-law.us/1x79IAj

http://rec-law.us/1qPcLds

Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.

If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

 

 

#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, Whitewater Rafting, Rafting, Commercial, Commercial Raft Company, Commercial Guide Service,

 


Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206

Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206

Cari J. Wroblewski, Plaintiff, v. Ohiopyle Trading Post, Inc., Defendant.

Civil Action No. 12-0780

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

2013 U.S. Dist. LEXIS 119206

August 22, 2013, Decided

August 22, 2013, Filed

COUNSEL: [*1] For CARI J. WROBLEWSKI, Plaintiff: Emmanuel J. Argentieri, LEAD ATTORNEY, Parker McCay, Mount Laurel, NJ; Gary F. Piserchia, PRO HAC VICE, Parker McCay P.A., Mt. Laurel, NJ.

For OHIOPYLE TRADING POST, INC., Defendant: P. Brennan Hart, LEAD ATTORNEY, Jeanette H. Ho, Pietragallo, Bosick & Gordon, Pittsburgh, PA; John R. Brumberg, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA.

JUDGES: Mark R. Hornak, United States District Judge.

OPINION BY: Mark R. Hornak

OPINION

Mark R. Hornak, United States District Judge

Cari Wroblewski brings suit against Ohiopyle Trading Post, Inc. (“Ohiopyle”) alleging that she suffered injuries to her knee as a result of Defendant’s negligence and gross negligence when she was thrown from her raft during a white water rafting trip. Ohiopyle argues that it is entitled to summary judgment because (1) Plaintiff signed a Rental Agreement which contained a provision releasing Defendant from liability (“Release”) for the very claims made in this matter and (2) Defendant did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting. These matters, having been fully briefed by the parties and oral [*2] argument having been presented, are ripe for disposition. For the reasons which follow, Ohiopyle’s Motion for Summary Judgment is granted.

I. Background

Cari Wroblewski was 37 years old at the time of the incident that forms the basis of this lawsuit. Wroblewski Dep. 7:4-5. She holds an associate’s degree in business as well as a bachelor’s degree in accounting. Id. at 8:18-9:19. In April 2010, two months prior to the trip at issue in this case, Plaintiff went white water rafting on the Salt River in Arizona where she signed a rental agreement with a release and was informed that white water rafting could be dangerous and that she could fall out of the raft. Id. 16:21-17:7; 20:14-21:9.

One of Plaintiff’s friends, Steve Rose, made arrangements to rent equipment from Ohiopyle for a rafting trip on the Youghiogheny River with a group of their friends on June 11, 2010. ECF No. 21 ¶ 2; ECF No. 25 ¶ 2. Joel Means, one of the owners of Ohiopyle, testified in his deposition that the lower section of the Youghiogheny River is considered “the intermediate white water section of the River” and consists of Class I through Class III rapids with borderline Class IV at certain levels. Means Dep. 14:8-15:1. [*3] Plaintiff had been told, not by an Ohiopyle employee but most likely by one of her friends in the group, that the rapids on the river would be mild, level two and three rapids. Wroblewski Dep. 37:6-23. 1

1 “Q: What made you think before then that the rapids were levels two or three?

A: From what I had been told they were supposed to be rather mild rapids.

Q: Who told you that they were rather mild rapids?

A: I don’t recall.

Q: It wasn’t anyone from Ohiopyle Trading Post; was it?

A: No

Q: Was it one of the people in your group that went white water rafting that day?

A: Most likely.” Wroblewski Dep. 37:6-23.

On the morning of June 11, 2010, Means noticed that the river was “up and brown” from rain the night before, and that the water level had risen from 2.5 to 3.98 feet. Means Dep. 19:2-11. When the river’s water level reaches four (4) feet, rafters are required by state regulations to have an experienced guide accompany them on their rafting trip. 2 Id. 60:3-6. Ohiopyle is permitted to provide guided white water rafting tours when the level of the river is between four (4) and ten (10) feet. ECF No. 31. Means testified that the river level being of above average flow could make the rafting trip [*4] more difficult, but that the river is more dangerous at low levels than at high levels. Means Dep. 47:18-22.

2 At oral argument, Plaintiff’s counsel persistently argued not that the river level actually was four (4) feet at the time at issue, but that the Court should treat it as if it were. The Court knows of no record basis to do so.

Plaintiff and her friends traveled to the Youghiogheny River for the white water rafting trip on the morning of June 11, 2010. ECF No. 21 ¶ 1; ECF No. 25 ¶ 1. Upon arriving at the River, Plaintiff went to the bathroom for “quite a while” while the rest of her group started to get their rented equipment. ECF No. 25 at 2, ¶ 1; Wroblewski Dep. 31:8-19. Means informed the rest of Plaintiff’s group that the level of the river was above average flow that day and therefore the river that day was a “real white water river” and not a “float trip.” Means Dep. 16:16-17. Means told Steve Rose that if he and the others in the group no longer wished to rent equipment, Ohiopyle would provide the group with a guided whitewater rafting tour at a discounted rate of $40 per person rather than the usual price of $60 per person (a non-guided rafting trip costs about $20 per [*5] person). Id. 38:9-14; 46:21-47:8. Plaintiffs group declined the offer of a discounted guided rafting trip. Means also instructed his employees that day to “make sure [the group understood] what game they’re about to play,” in reference to the river. Id. 39:11-15. Presumably because she was in the bathroom, Plaintiff never heard from Means his advice as to the conditions of the river or offer of a guided tour. Wroblewski Dep. 32:2-12.

When Plaintiff was finished in the bathroom, she went to get her equipment from Ohiopyle and was “in a rush” because her friends had gotten a head start. ECF No. 25 at 2, ¶¶ 2-3; Wroblewski Dep. 31:8-19. An Ohiopyle employee handed Plaintiff a Rental Agreement and told her that she “needed to sign the form and meet up with [her] group because they were getting their gear.” ECF No. 25 at 2, ¶ 5; Wroblewski Dep. 76:6-21. Plaintiff testified that “[t]hey hurried me along” and she was not given an opportunity to read the Rental Agreement. Wroblewski Dep. 78:7; 76:22-23. She also testified that the Ohiopyle employee “didn’t ask me to read it, they just gave it to me and said please sign this and catch up with your group, they’re already getting their stuff.” [*6] Id. 78:3-13. Plaintiff signed Ohiopyle’s Rental Agreement which included a waiver and release of liability provision (“Release”). ECF No. 19-5. 3

3 Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement. ECF No. 19-5.

After receiving her rafting equipment, Plaintiff and her group received a safety briefing by an Ohiopyle employee before being sent to the river to embark on their trip. ECF No. 25 ¶ 8; Wroblewski Dep. 32:13-16. In the safety briefing, Plaintiff was warned that white water rafting can be dangerous, and it was possible that participants could fall out of the raft. Wroblewski Dep. 33:6-12.

After rafting through the first set of river rapids, Plaintiff grew concerned that the rapids were not level two or three. Id. 37:6-10. Plaintiff stated that she was concerned that the river was more than she could handle, and that she considered getting off of the river but “[t]here was no place to get off.” Id. 40:5-16. Plaintiff did not express her concerns to any others on the rafting trip. Id. 40:10-1. Near the end of the whitewater rafting trip, Plaintiff was thrown from the raft. ECF No. [*7] 21 ¶ 5; ECF No. 25 ¶ 5; Wroblewski Dep. 41:12-20. According to Plaintiff, she was dragged under water and struck her knee on a rock, sustaining serious injuries. ECF No. 21 ¶ 6; ECF No. 25 ¶ 6; Wroblewski Dep. 41:21-42:1.

Plaintiff filed this action against Defendant in June 2012. ECF No. 1. Defendant moved for summary judgment. ECF Nos. 19, 20, 21. Plaintiff filed her response, ECF Nos. 24, 25, and Defendant filed a reply as well as a supplement. ECF Nos. 26, 27, 31. For the reasons discussed below, Defendant’s Motion for Summary Judgment is granted.

II. Standard

Summary judgment is appropriate when “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The parties must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In other words, summary judgment may be granted only if [*8] there exists no genuine issue of material fact that would permit a reasonable jury to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.2009) (citations omitted). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (1986). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier [*9] of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.

III. Discussion

Ohiopyle advances two arguments in support of its summary judgment motion. First, Defendant submits that the Rental Agreement form signed by Plaintiff contained a valid and enforceable release of liability in favor of Defendant, releasing Defendant from liability for the very claims made in this matter. Secondly, Defendant argues that it did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting, and this Defendant should not have any liability.

On June 11, 2010, prior to white water rafting, Plaintiff signed a two-page document that contains a release of liability and is titled “RENTAL AGREEMENT” in capital letters at the top of its first page. ECF No. 19-5. The top half of the first page is a form to be filled out with information relating to the primary renter and the white water rafting equipment to be rented. Id.

The bottom half of the first page begins with the header “TERMS AND CONDITIONS,” with thirteen (13) paragraphs listed in three columns [*10] under this header. Id. The actual language releasing Ohiopyle from liability regardless of its own negligence is listed as paragraph nine (9) in this section. Id. The font of the Release language is the same size as the other paragraphs listed under “TERMS AND CONDITIONS” but, unlike the other paragraphs, is written in all capital letters. Id. The exculpatory clause consequently falls on the bottom half of the front side of the first page, in both the left and middle columns and, by itself, makes up approximately half of the language listed under “TERMS AND CONDITIONS.” Id.

Paragraph nine (9) contains the following language:

9. READ CAREFULLY THE FOLLOWING WAIVER AND RELEASE OF LIABILITY: HAVING RECEIVED A SAFETY TALK BY A MEMBER OP LESSOR’S STAFF, AND HAVING READ THE SAFETY PRECAUTIONS AND RECOMMENDATIONS ON THE REVERSE SIDE HEREOF, LESSEE(S) HEREBY ACKNOWLEDGE THAT HE/SHE/THEY FULLY UNDERSTAND(S): (a) THAT OUTDOOR RECREATIONAL ACTIVITIES HAVE INHERENT RISKS, DANGERS, AND HAZARDS, AND THAT SUCH EXISTS IN MY USE OF THE EQUIPMENT ABOVE DESCRIBED AND MY PARTICIPATION IN WHITE WATER RAFTING AND RELATED ACTIVITIES; (b) THAT MY PARTICIPATION IN SUCH ACTIVITIES AND/OR THE USE OF SUCH EQUIPMENT [*11] MAY RESULT IN INJURY OR ILLNESS, INCLUDING, BUT NOT LIMITED TO, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL AND OR TOTAL PARALYSIS, DEATH, OR OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY; (c) THAT SAID RISKS AND DANGERS MAY BE CAUSED BY (i) THE NEGLIGENCE OF THE OWNERS, EMPLOYEES, OFFICERS, OR AGENTS OF LESSOR, (ii) THE NEGLIGENCE OF PARTICIPANTS, (iii) THE NEGLIGENCE OF OTHERS, (iv) ACCIDENTS, (v) BREACHES OF CONTRACT, AND (vi) THE FORCES OF NATURE OR OTHER CAUSES; (d) THAT RISKS AND DANGERS MAY ARISE FROM FORESEEABLE OR UNFORESEEABLE CAUSES, INCLUDING, BUT NOT LIMITED TO, GUIDE DECISION MAKING, INCLUDING THAT A GUIDE MAY MISJUDGE TERRAIN, WEATHER, TRAIL OR RIVER ROUTE LOCATION; WATER LEVEL; FALLING OUT OF OR DROWNING WHILE IN A RAFT, CANOE, OR KAYAK; AND SUCH OTHER RISKS, HAZARDS. AND DANGERS THAT ARE INTEGRAL TO RECREATIONAL ACTIVITIES THAT TAKE PLACE IN A WILDERNESS, OUTDOOR OR RECREATIONAL ENVIRONMENT; AND (e) THAT BY MY PARTICIPATION IN THESE ACTIVITIES AND/OR USE OF THE EQUIPMENT ABOVE DESCRIBED, I HEREBY ASSUME ALL RISKS, DANGERS, AND RESPONSIBILITY FOR ANY LOSSES AND/OR DANGERS, WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR OTHER CONDUCT OF THE OWNERS, [*12] AGENTS, OR EMPLOYEES OF LESSOR OR ANY OTHER PERSON.

AND FURTHER, ON BEHALF OF MY PERSONAL REPRESENTATIVES, SUCCESSORS, HEIRS, AND ASSIGNS, I DO HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, LOSS OF SERVICES, OR OTHERWISE WHICH MAY ARISE OUT OF MY USE OF THE EQUIPMENT ABOVE DESCRIBED, OR MY PARTICIPATION IN ANY ACTIVITIES INVOLVING SAID EQUIPMENT. I SPECIFICALLY UNDERSTAND THAT I AM RELEASING, DISCHARGING, AND WAIVING ANY CLAIMS OR ACTIONS THAT I MAY HAVE PRESENTLY OR IN THE FUTURE FOR THE NEGLIGENT ACTS OR OTHER CONDUCT BY THE OWNERS, AGENTS, OFFICERS, OR EMPLOYEES OF LESSOR.

I HAVE READ THE ABOVE WAIVER AND RELEASE, AND, BY SIGNING THIS RENTAL AGREEMENT, AGREE THAT IT IS MY INTENTION TO EXEMPT AND RELIEVE LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.

Id.

At the end of the “TERMS AND CONDITIONS” section, at the beginning of the right column, is the following language:

IN WITNESS [*13] WEREOF, and intending to be legally bound hereby, the undersigned Lessee(s) hereby certify that he/she/they have read and understood the terms and conditions of this Rental Agreement, and has/have affixed his/her/their hand(s) and seal(s) hereto on the dated indicated.

Id. Directly underneath this language, and in the column next to the exculpatory clause, multiple lines were provided where Plaintiff and the members of her party signed their names. Id. Plaintiff’s signature is the second to last signature listed on the form. Id.

The second page of the Rental Agreement has two sections. Id. The first section includes the header “SAFETY PRECAUTIONS” and the second section is titled “RECOMMENDATIONS.” Id. Both sections list a number of precautions and recommendations for how white water rafters should conduct themselves while on the river. Id.

The Defendant argues that the Release contained in the Rental Agreement is valid and enforceable. ECF Nos. 19, 20, 26. Plaintiff on the other hand asserts that the Release is unenforceable because its language is not sufficiently conspicuous to alert a party that it serves to release Defendant from liability and that Plaintiff did not actually assent [*14] to the terms of the Rental Agreement. ECF No. 24. To support her contentions, Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Id. at 7-8. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Id. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees. Id.

The parties agree that this Court must consider Pennsylvania law and apply it in this case. See Lin v. Spring Mountain Adventures, Inc., 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *3 (E.D. Pa. Dec. 23, 2010). Applying Pennsylvania law, the Pennsylvania Supreme Court explained that:

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent [*15] to the agreement so that the contract is not one of adhesion. . . . once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (citations omitted).

Plaintiff primarily relies on three release of liability cases to support her contention that the Release is in this instance unenforceable: Beck-Hummel v. Ski Shawnee, Inc., 2006 PA Super 159, 902 A.2d 1266 (Pa. Super. Ct. 2006); [*16] Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (Pa. 2010), and Lin v. Spring Mountain Adventures, Inc., No. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010). 4

4 Plaintiff does not argue that the release in this instance is facially invalid.

In Beck-Hummel, the plaintiff brought a negligence claim for injuries she received from colliding with a barrier wall while snow tubing at the defendant’s resort. 2006 PA Super 159, 902 A.2d 1266. There, the release was printed on the backside of a lift ticket that the plaintiff’s husband purchased and had given to plaintiff. Id. at 1267, 1270-71. The release contained hard to read and inconspicuous language, it did not require a signature or acknowledgment, and was printed on the portion of the ticket that would be folded out of sight of the user. Id. at 1269, 1273-1274. The record also revealed the lift ticket was not given to the Plaintiff directly by the operator. The Pennsylvania Superior Court held that plaintiff’s assent to the terms of the disclaimer was not clearly established and therefore it could not hold as a matter of law that the release for snow tubing injuries was enforceable. Id. at 1275.

In Chepkevich, plaintiff skier, who had signed a release [*17] prior to skiing, asked a lift operator to stop a lift so that she and her 6-year-old nephew could board the lift. Although the lift operator agreed to do so, when the lift came behind the plaintiff and her nephew, the operator failed to stop the lift. The skier sued the ski resort for negligence for injuries she received as a result of falling from the ski lift. The release in this case was printed on a single page and titled “RELEASE FROM LIABILITY.” 2 A.3d at 1192. The language releasing liability was in the same font as the rest of the release, included the term “negligence”, and “specifically noted that riding the ski lift is a risky activity.” Id. The plaintiff argued that she did not read the exculpatory language nor did anyone orally inform her that she was entering into such an agreement. Id. at 1180-81. The court held that the release was valid, enforceable, and “clearly encompassed the risk at issue . . . [and] clearly spelled out the parties’ intention to release [defendant] from liability for injuries . . . regardless of any negligence on the part of the [defendant].” Id. at 1195. The court therefore upheld the grant of summary judgment in favor of the defendant. Id.

Finally [*18] in Lin, the plaintiff sued for serious injuries sustained from skiing when she lost control and fell into a snow making machine that was not properly padded. The document containing the release provision was titled “EQUIPMENT RENTAL FORM AND RELEASE FROM LIABILITY.” 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *2. On the front page of the release was a capitalized, blocked section in the center of the page, above the signature line, instructing the reader to “PLEASE READ THE AGREEMENT ON THE BACK OF THIS FORM BEFORE SIGNING. IT RELEASES U.S. FROM CERTAIN LIABILITY.” Id. Directly between the instruction to read the back of the release and the signature line was the following statement: “I, the undersigned, have carefully read and understood the Acceptance of Risk and Liability Release on the back of this paper.” Id. The exculpatory clause was located on the back of the form and stated multiple times that it was a release from liability. 2010 U.S. Dist. LEXIS 136090, [WL] at *2. The court found that even though the plaintiff had not read the release language, that she “was a voluntary signatory to a full-sized contract.” 2010 U.S. Dist. LEXIS 136090, [WL] at *5. The court held that the exculpatory clause was enforceable and granted defendant’s motion for summary judgment. [*19] 2010 U.S. Dist. LEXIS 136090, [WL] at *9.

This case is not analogous to Beck-Hummel, as Plaintiff contends. Unlike Beck-Hummel, Plaintiff “was not a mere recipient of a release printed on a ticket, but was a voluntary signatory to a full-sized contract.” Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *5. Plaintiff signed the Rental Agreement herself, and her signature is immediately preceded by instructions guiding her to read the entirety of the form and confirming that she had done so. Moreover, Plaintiff was provided a full-sized contract in which the Release was set forth on its front side, as opposed to a small unreadable ticket that she did not sign and in which the operative language was written on the reverse side.

Moreover, the language of the Release, construed strictly against Defendant, plainly expresses the intention of the parties to release Defendant from liability for future injury. The paragraph mentions “negligence” five (5) times and that it is a release of liability three (3) times. ECF No. 19-5. 5 Specifically, the first sentence of paragraph 9 asks the signer to carefully read the “WAIVER AND RELEASE OF LIABILITY.” Id.

5 In fact, exculpatory clauses may bar suits based on negligence even where the clause does not specifically [*20] mention the word “negligence” at all. Chepkevich, 2 A.3d at 1193. “It strains common sense to suggest that releases that fail to mention the word ‘negligence’ should consistently be interpreted as barring suits based on negligence claims, while a release that clearly states that suits are barred ‘regardless of negligence’ would not bar such suits.” Id.

Part of Plaintiff’s argument is that she was not personally informed by Ohiopyle of the elevated water level prior to her signing the Rental Agreement. However, the language of the Release explicitly warned of the same things that Defendant’s employees cautioned the rest of Plaintiff’s group. Specially, the Release warns of “bodily injury” from “risks and dangers [that] may arise from foreseeable or unforeseeable causes, including . . . water level” and “falling out of . . . a raft.” Id. Furthermore, the clause stated that by signing the agreement, the signor “assume[s] all risks, dangers, and responsibility for any losses and/or dangers.” Id. In fact, the clause even warns of “total paralysis” and “death.” Id. This paragraph goes on to explain that the signor “specifically understand[s] that I am releasing, discharging, and waiving any [*21] claims or actions that I may have presently or in the future for the negligent acts or other conduct by” the Defendant. Id. Furthermore, “it is my intention to exempt and relieve lessor . . . from liability for personal injury . . . caused by negligence.” Id. It is also important to note that prior to her trip to Ohiopyle, Plaintiff admittedly went white water rafting in Arizona where she signed a rental agreement with a release, and was informed that white water rafting could be dangerous and that she could fall out of the raft. Wroblewski Dep. 16:21-17:7; 20:14-21:9. Moreover, in Ohiopyle’s safety briefing, right before Plaintiff boarded the raft, Plaintiff and her group were warned that white water rafting can be dangerous, and it was possible that she could fall out of the raft. Id. 33:6-12.

The fact that the exculpatory language was contained in the bottom half of the first page, not listed until paragraph 9, and not directly above the signature line does not make it unenforceable, either generally or in this case. While the terms and conditions are in a slightly smaller font than the upper half of the form, they are still clearly readable. Moreover, paragraph 9 is the only paragraph [*22] written entirely in capital letters. Taken as a whole, using a strict (but common sense) interpretation, it is clear the form in question releases the Defendant from liability for injuries such as those sustained by Plaintiff, even if due to Defendant’s own negligence. 6

6 Lahey v. Covington, 964 F. Supp. 1440, 1442 (D. Colo. 1996) is factually similar to this case in that there, the defendant failed to personally inform plaintiff of heightened water level when the plaintiff took a white water rafting trip through defendant’s company. The Arkansas Headwater Recreation Area, a white water rafting regulatory group, recommended against any rafting when the water flow measured 4.0 feet high or more (the same cut-off measurement for rafts without guides at Ohiopyle). The defendant also had a company policy to not take people rafting when the water was four feet or higher. On the day in question, the river measured 3.8 feet but, similar to this case, the defendant did not inform the plaintiff that the water level was “high” that day. Plaintiff signed a release of liability agreement prior to the trip and was injured after being tossed into the river. The court held that the exculpatory portion [*23] of the release agreement was valid and granted defendant’s motion for summary judgment on plaintiff’s negligence claim. Id. at 1446.

Plaintiff contends that summary judgment is also improper because whether she knowingly signed the Rental Agreement and assented to its terms is a question of fact for the jury. ECF No. 24. Plaintiff argues that she did not read the Release and that employees of Defendant did not directly warn or advise her as to the conditions of the river or offer her a guided tour, nor did they orally inform her of what the form stated or ask her to read the form, and that they rushed and “hurried [her] along”, and therefore she did not assent to the terms of the agreement. Id.

Plaintiff voluntarily chose to engage in the sport of white water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white water rafting trip with her group. See Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012) (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or [*24] not, in the activity, and, therefore, is free to sign, or not, the release form.”); see also Chepkevich, 607 Pa. 1, 2 A.3d 1174 (release enforceable even though plaintiff had not read agreement); Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (same). There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.

Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity. Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (Pa. 1983) (“[I]n the absence of proof of fraud, failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.”); see also Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D. Pa. Feb. 11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention. [*25] . . . Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). 7

7 See also In re Greenfield Estate, 14 Pa. 489, 496 (Pa. 1850) (“[i]f a party, who can read . . . will not read a deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which . . . is not the subject of protection, either in equity or at law.”).

This rule has been applied time and again in the context of recreational activities in which a party signed a pre-injury release of liability. For instance, the Pennsylvania Superior Court affirmed an order granting summary judgment in favor of the owner of a racetrack where the plaintiff had signed an agreement releasing all claims against the racetrack before he was injured. Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380 (Pa. Super. Ct. 1990). The Superior Court held that the signed release was enforceable even though plaintiff claimed that he had not read it, did not know that he was signing a release, and did not have time to read the document because of a long line of people behind [*26] him. Id. at 1383 (“His explanation that he did not read it does not, in the absence of fraud or a confidential relationship, extricate him from its operation.”). See also Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6 (“[i]t is a well established rule under Pennsylvania law that failure to read a contract does not relieve a party of their obligation under such contract that they sign, and such parties will be bound by the agreement without regard to whether the terms were read and fully understood.”); Martinez v. Skirmish, U.S.A., Inc., No. 07-5003, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, *7 (E.D. Pa. June 15, 2009) (release enforceable as to negligence for injury to plaintiff during paintball game, noting that plaintiff was accompanied by friends “who could have explained the Waiver & Release to him, if he had asked them to do so. . . . Consequently, [plaintiff’s] failure to read that document cannot constitute a defense to the enforceability of the Waiver & Release.”); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174-75 (E.D. Pa. 1990) (release that plaintiff signed before being injured while racing all-terrain vehicle was enforceable even though plaintiff failed to read it because “[t]o accept plaintiff’s [*27] argument that there is such a duty [on the part of the defendant] to inform in this case would essentially abrogate the law of Pennsylvania regarding plaintiff’s duty to read.”). 8

8 In Doe v. Cultural Care, Inc., No. 10-11426-DJC, 2011 U.S. Dist. LEXIS 28226, 2011 WL 1048624, at *4-5 (D. Mass. Mar. 17, 2011), the court held that a release signed by plaintiff was enforceable even if the defendant had rushed her. There, the court explained that

“[t]he fact that [plaintiff] did not take the time to read the terms and conditions of the Agreement because she felt hurried by [defendant] does not change the analysis. [Plaintiff] does not dispute that she executed the Agreement or that it contains the Release. She disputes that she agreed to the terms and conditions, that the Release discharges Defendants from liability or bars her claims since she had no knowledge of the Release and was rushed into executing the Agreement based on Defendants’ representations.”

Id.

Similar to the cases discussed above, Plaintiff voluntarily participated in the white water rafting trip. “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential [*28] services, but merely governs a voluntary recreational activity.” Chepkevich, 2 A.3d at 1191. Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white water rafting. See Martinez, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, at *7 (argument that plaintiff had no choice but to sign release because he had pre-paid for the paintball activity was unavailing for the reason that it was a recreational activity where participation was voluntary). Holding that Defendant had a duty to orally inform Plaintiff of what she was signing, or holding a release unenforceable because Plaintiff failed to read the contract containing a release of liability she signed because she felt rushed, would turn this rule on its head.

The Court considers, as it must, all of the relevant circumstances set out in the record, Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6, and is unable to agree with Plaintiff that the Rental Agreement constituted (as a matter of law) an insufficient effort on the part of Ohiopyle to inform her of the fact that by signing that Agreement, she was giving up any right she might have to sue for damages arising from injuries caused even by negligence. In five [*29] (5) different places the Release mentions “negligence” and states that is a release of liability in three (3) places. ECF 19-5. Similar to Chepkevich, “[a]lthough the outcome in this case was certainly unfortunate, the risk was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release, which specifically noted” that white water rafting is a risky activity in which water levels can increase or decrease and that you can fall out of the raft. Chepkevich, 607 Pa. 1, 2 A.3d 1174, 1194. Furthermore, between her previous white water rafting trip in Arizona and the safety briefing she was admittedly provided by Ohiopyle, Plaintiff was aware that white water rafting was dangerous and that falling out of a raft was an actual danger of the activity. Moreover, Plaintiff’s argument that there is an issue of material fact as to whether she assented to the terms of the agreement because she felt “rushed” by Defendant, is insufficient to deem the agreement unenforceable in light of her duty under Pennsylvania law to read a contract.

The Release, even when construed against Defendant, clearly spelled out the parties’ intention [*30] to release Defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s Motion for Summary Judgment is granted. 9

9 Because the signed Rental Agreement precludes Plaintiff from bringing a claim of negligence against Defendant, the Court need not decide whether the incident at issue in this case was an inherent risk of white water rafting.

IV. Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. An appropriate Order will issue.

/s/ Mark R. Hornak

Mark R. Hornak

United States District Judge

Dated: August 22, 2013


Whitewater rafting, 13 injuries one death and release in WV are upheld. Management-level employees of DC health care company rafted river in allegedly high water causing injuries.

West Virginia Supreme court holds that admiralty or maritime law does not apply to whitewater rafting.

River Riders, Inc., v. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

Date of the Decision: December 10, 2008

Plaintiff on Appeal, Defendants at the trial court: River Riders, Inc., and Matthew Knott, Petitioners

Defendant: The Honorable Thomas W. Steptoe

Third parties on appeal: plaintiff’s at the trial court: Executor of the estate of the deceased and the 13 injured plaintiffs

Plaintiff Claims: failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code

Defendant Defenses: release

Issue on Appeal: Whether the trial court had improperly held the whitewater rafting trip was subject to federal admiralty law.

Holding:

This is an interesting case from a procedural perspective as well as a factual one. The issue on appeal is not a review of a complete ruling by the trial court but of a ruling that the defendants, and the court felt would influence the final decision. Meaning the defendant could convince the appellate court that the trial court’s ruling was probably wrong and unless corrected now, the entire trial would have to be done again.

The facts are people went rafting on the Shenandoah River in West Virginia. Before embarking on the trip each person signed a “Release, Assumption of Risk and Indemnity Agreement.” The water was higher than average on the day of the raft trip; 12.5 feet compared to an average of 2 to 4 feet. During the raft trip four of the rafts dumped, sending several people into the water, including the deceased and thirteen other rafters into the river.

Two separate lawsuits were filed over the incident. The first was by the estate of the deceased. The second lawsuit was filed by the other thirteen injured rafters.

The complaints of the plaintiff allege several issues:

…River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987).

…that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area.

…failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase.

The complaint for the wrongful death included the following claims:

two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a

Prior to trial, the plaintiff’s filed a motion in limine to exclude the release agreement which the court granted. The court relied upon a prior West Virginia Supreme Court case that held since there was a statute supporting and providing defenses for the whitewater rafting industry, a release was no long available as a defense. Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991)

Another motion in limine was filed by the plaintiff’s arguing that assumption of risk could not be a defense because the case was governed by maritime law.

Finally, the plaintiff’s filed a motion to consolidate both lawsuits into one and have one trial. This motion was also granted by the court.

The defendants then filed motions with the West Virginia Supreme court arguing that the motions of the trial court were wrong, and the court had to intervene for a fair trial to occur. This motion was called a Writ of Prohibition.

The West Virginia Supreme Court granted the Writ but only as to the issue of whether or not maritime law applied to a whitewater rafting case in West Virginia.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency.

The court declined to review the other issues because a writ of prohibition was not the proper way to argue the issues and timing of those issues were best left to the appeal of the case.

Summary of the case

To be subject to Federal maritime law a two-prong test must be met, “whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity.”

In determining whether or not the accident occurred on navigable waters the trial court should have included an analysis of “…whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” and determined the “the activity of whitewater rafting does not constitute traditional maritime activity and is therefore, not governed by maritime law.”

…given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to  the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted.

Nor could the court find any decision where admiralty law had been applied to whitewater rafting.

Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raftin rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity.

The appellate court sent the case back down with two of the rulings intact.

So Now What?

Admiralty law is a separate area of the law. It was developed prior to the formation of the United States for commerce between countries. It has very different rules for liability, worker’s compensation and other legal issues. In the US, admiralty law also applies to travel on major rivers and waterways. When and how admiralty law is applied is dependent upon the federal statute and the type of admiralty activity. As an example there are more than a dozen different definitions of navigable for different maritime activities.

Admiralty law came from commerce. Admiralty law has been applied to recreational activities in the past, such as using personal water craft, however, in all of those cases; the activity was on the ocean or large bodies of water.

Admiralty law could be used in some states on some rafting rivers as a defense, if handled by a law firm knowledgeable in admiralty law. If the jurisdictional issues are met, a defendant can go to court within six months of an accident and file a notice (open a case) and post a bond. The reason for doing this is, under admiralty law, the damages available to the plaintiff’s is limited to the value of the vessel and its contents after the accident. However, by doing this the raft company may be admitting liability and must prove it was an admiralty issue.

This law as created to limit the damages of a ship owner to not bankrupt the owner or the industry. A $10,000 raft, frame and gear are a relatively cheap and easy way to get out from under a potential claim. However, if you fail to meet the requirements but are still subject to admiralty law, you do not have several defenses normally relied upon to stop claims: releases and assumption of the risk.

To some extent, we are left hanging by the decision on whether a release is valid as a defense in a rafting accident in West Virginia. However, the decision on whether the federal maritime law is applicable is valuable.

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River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

River Riders, Inc., and Matthew Knott, Petitioners v. The Honorable Thomas W. Steptoe, all Plaintiffs in the Christopher et al v. River Riders, Inc., Civil Action No. 06-C-328, And All Plaintiffs in Freeman Civil Action NO. 06-C-325, Respondents

No. 34206

SUPREME COURT OF APPEALS OF WEST VIRGINIA

223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

October 28, 2008, Submitted

December 10, 2008, Filed

SYLLABUS

[**378] [*242] BY THE COURT

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

2. [***2] “In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.” Syllabus Point 2, State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, 2008 WL 2523591 (W. Va. 2008).

3. “In the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” Syllabus Point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).

4. “A writ of prohibition will not issue to prevent a simple abuse of [***3] discretion by a [**379] [*243] trial court.” Syllabus Point 4, State ex rel. Shelton v. Burnside 212 W. Va. 514, 575 S.E.2d 124 (2002).

5. “A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.” Syllabus Point 6, State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998).

6. Federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity [***4] giving rise to the incident had a substantial relationship to traditional maritime activity.

7. “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must ‘assess the general features of the type of incident involved,’ 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has ‘a potentially disruptive impact on maritime commerce,’ id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’ Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.” Grubart v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L. Ed. 2d 1024 (1995).

8. The activity of whitewater rafting does not constitute traditional maritime activity [***5] and is therefore not governed by federal admiralty law.

COUNSEL: For Petitioners: Robert P. Martin, Esq., Justin C. Taylor, Esq., Jared M. Tully, Esq., Bailey & Wyant, P.L.L.C., Charleston, West Virginia; Michael A. Barcott, Esq., Holmes Weddle & Barcott, P.C., Seattle, Washington.

For Kathy L. Freeman, Respondent: Stephen G. Skinner, Esq., Laura C. Davis, Esq., Skinner Law Firm, Charles Town, West Virginia.

For The Christopher Plaintiffs, Respondent: Michael P. Smith, Esq., Salsbury, Clements, Beckman, Marder & Adkins, LLC, Baltimore, Maryland; Mark Jenkinson, Esq., Burke, Schultz, Harman, and Jenkinson, Martinsburg, West Virginia.

JUDGES: JUSTICE BENJAMIN delivered the Opinion of the Court. CHIEF JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion. JUSTICE ALBRIGHT not participating. SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.

OPINION BY: BENJAMIN

OPINION

Petition for a Writ of Prohibition

WRIT GRANTED AS MOULDED

BENJAMIN, Justice: 1

1 Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until [***6] the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.

Petitioners, River Riders, Inc. and Matthew Knott, seek a writ of prohibition to vacate three pre-trial orders of the Circuit Court of Jefferson County that (1) excluded from the forthcoming trial the Release and Assumption of Risk Agreements that had been signed by fourteen plaintiffs prior to embarking on a whitewater rafting expedition provided by the Petitioners; (2) ruled that the rafting incident was governed by [**380] [*244] general maritime law, thus, precluding assumption of the risk as a defense; and (3) consolidated the civil action of the personal representative of the estate of the decedent with the civil action brought by thirteen injured persons. After careful consideration of the memoranda 2 and arguments in this proceeding, as well as the pertinent legal authorities, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law.

2 We wish to acknowledge the participation of the West Virginia Professional River Outfitters amicus curiae in support of Petitioners and appreciate their [***7] participation in this action.

I.

FACTUAL AND PROCEDURAL HISTORY

This original proceeding in prohibition arose out of a commercial whitewater rafting accident on the Shenandoah River in Jefferson County, West Virginia, which resulted in the death of one person and injuries to thirteen others, all paying participants in a rafting expedition taken with River Riders, Inc., a licensed commercial whitewater outfitter. 3 As a result of the accident, two separate lawsuits against River Riders ensued. The first action was filed by Kathy L. Freeman [hereinafter referred to as the “Freeman plaintiff”], as personal representative of the estate of her husband, the decedent, Roger Freeman. 4 The second action was filed by the thirteen injured persons and seven of their spouses [hereinafter collectively referred to as the “Christopher plaintiffs”] who claimed loss of consortium. 5

3 The accident, which occurred on September 30, 2004, involved four inflatable rafts which dumped Roger Freeman and thirteen of the Christopher plaintiffs into the Shenandoah River, causing Mr. Freeman to drown, and causing various personal injuries to the others. All but two of the fourteen were management employees of Kaiser [***8] Permanente of suburban Washington, D.C. It is claimed that on this particular day, the level of water on the Shenandoah River was approximately 12.5 feet, compared to a normal average level of 2 to 4 feet during that time of year.

4 The Freeman lawsuit also names Matthew Knott, owner of River Riders, as a defendant. Mr. Knott is also alleged to have been a commercial whitewater guide who guided one of the rafts on the ill-fated expedition and who served as the trip’s leader.

5 In the second of the complaints, Timothy Friddle, husband of Cristina Renee Friddle, is named as a plaintiff. They claim “loss of consortium and services, and interference with and injury to their marital relationship.” Timothy Friddle is not, however, named as a spouse and as plaintiff in the Memorandum which these plaintiffs filed with this Court in this proceeding. The Petitioners represent that Mr. Friddle has been voluntarily dismissed from the action.

Prior to embarking on the rafting expedition, Roger Freeman and each of the injured Christopher plaintiffs signed a “Release, Assumption of Risk and Indemnity Agreement” [hereinafter sometimes referred to as “Release Agreement”] provided to them by River Riders. [***9] In that agreement, each signatory (1) acknowledged that he or she had requested to be allowed to participate in whitewater rafting provided by River Riders; and expressed his or her understanding, among other things, that “[whitewater rafting] activities and services pose substantial risks of injury or death. . . as the result of exposure; . . . or being in whitewater rivers and streams; . . . the negligence, gross negligence, or bad judgment by [the signatory], River Riders, Inc., or other participants; the failure or misuse of equipment; . . . and other known and foreseeable risks of [whitewater rafting].” (Emphasis in original). The signatories to the Release Agreement also agreed, in part, that:

In consideration of and as partial payment for being allowed to participate in [whitewater rafting] provided by River Riders, Inc., I ASSUME, to the greatest extent permitted by law, all of the risks, whether or not specifically identified herein, of all the activities in which I participate and services I use [whitewater rafting]; I RELEASE River Riders, Inc. from any and all liability, including, but not limited to, liability arising from negligence, gross negligence, willful and wanton [***10] and intentional conduct; . . .

[**381] [*245] The Freeman plaintiff and the Christopher plaintiffs contend that River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987). 6 In both actions, they assert that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area. 7 Specifically, Respondents argue that River Riders was negligent and careless and failed to conform to the standard of care by failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase. 8

6 In 1987, [***11] the Legislature enacted the Whitewater Responsibility Act, codified as W. Va. Code §§20-3B-1 et seq.(1987). Therein, [HN1] the Legislature stated that it “recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.” W. Va. Code §20-3B-1.

The Act [HN2] declares that “[n]o licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two of this chapter, by the rules of the commercial whitewater advisory board, or by the duties placed on such [***12] commercial whitewater outfitters or commercial whitewater guide by the provisions of this article.” W. Va. Code §20-3B-5(a).

Among the duties imposed by the Whitewater Responsibility Act upon all commercial whitewater guides providing services for whitewater expeditions in this state is that they “while providing such services, conform to the standard of care expected of members of their profession.” W. Va. Code §20-3B-3(b).

7 The Freeman plaintiff represents to the Court that the liability issues are exactly the same in both cases.

8 The wrongful death complaint filed by the Freeman plaintiff contains two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts [***13] or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a (1999) and 58 C.S.R. 12 (2008).

The complaint filed by the Christopher plaintiffs contains twenty counts, seven of which assert loss of consortium claims. The remaining thirteen counts are negligence claims under general maritime law, one for each injured plaintiff.

Prior to the forthcoming trial in this matter, the Freeman plaintiff filed a Motion in Limine to exclude the Release Agreement 9 that had been signed by Mr. Freeman. On January 30, 2008, the circuit court, in finding that the issues at trial on liability were whether the defendants met the standard of care required under the Whitewater Responsibility Act, entered an order granting the Motion in Limine prohibiting the defendants from introducing the Release Agreement, making any reference to it, or eliciting any information regarding it at trial. The circuit court based it ruling on the language of W. Va. Code §20-3B-3(b), and on this Court’s prior decision in Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991) [***14] 10 and on Johnson v. New [**382] [*246] River Scenic Whitewater Tours, Inc., 313 F.Supp.2d. 621 (S.D. W.Va. 2004).

9 The Freeman Plaintiff also filed a Motion for Judgment on the Pleadings which the circuit court denied.

10 In Murphy, this Court held that generally, [HN3] in the absence of an applicable statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from a defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. 186 W. Va. 310, 412 S.E.2d 504.

Thereafter, on April 15, 2008, the circuit court likewise granted a Motion in Limine Regarding Release and Assumption of the Risk filed by the Christopher plaintiffs, which excluded the release agreement from trial. The circuit court, finding that maritime law governed the case, held that assumption of the risk was not an available defense. Specifically, the court held:

Second, this Court is of the opinion that assumption of the risk is not an available defense in this maritime action. Because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). [***15] Assumption of the risk is not a defense in admiralty or maritime law. DeSole v. United States, 947 F.2d 1169, 1175 (4th Cir. 1991). In fact, “[t]he tenants of admiralty law, which are expressly designed to promote uniformity, do not permit assumption of risk in cases of person [sic] injury whether in commercial or recreational situation.” Id. The foundation of this principle has been recognized for more than 70 years. In The Arizona v. Anelich, Justice Harlan F. Stone, stated in support of his position that assumption of the risk was not a proper defense in cases of unseaworthiness, “No American case appears to have recognized assumption of risk as a defense by such a suit.” 298 U.S. 110, 122, 56 S. Ct. 707, 80 L. Ed. 1075 (1936). Accordingly, Defendant is prohibited from asserting the defense of assumption of the risk or making any argument in support of this defense at trial.

To the left of the judge’s signature on the order, there appeared a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Subsequent to the circuit court’s ruling on those issues, Petitioners filed a Motion for Relief from [***16] the circuit court’s order on April 23, 2008, to clarify that it had in fact filed a response to plaintiffs’ motion in limine, but that it was untimely filed due to excusable neglect. 11 Petitioners urged the circuit court to consider its reply.

11 Petitioners contended that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in the exclusion of a recognized common law defense in West Virginia, among other findings.

In a third order entered on May 19, 2008, the circuit court granted the Christopher plaintiffs’ motion to consolidate their case with the case of the Freeman plaintiff under Case No. 06-C-328. In granting the motion, the circuit court considered the four factors set forth in Syllabus Point 2, State ex rel. Appalachian Power Company v. Ranson, 190 W. Va. 429, 438 S.E.2d 609 (1993) in exercising its discretion when deciding issues of consolidation under Rule 42(a) of the West Virginia Rules of Civil Procedure. The circuit court expressly declined Petitioner’s request to bifurcate the cases on the issue of damages, stating that [***17] “the issue of liability and damages are intertwined and not reasonably susceptible of being bifurcated.”

Following the entry of the third order, Petitioners invoked the original jurisdiction of this Court in prohibition seeking a writ to vacate the three circuit court orders of January 30, 2008, April 15, 2008, and May 19, 2008. Petitioners assert that the circuit court’s rulings are incorrect for several reasons: (1) the Release Agreements are admissible as evidence because they contain warnings of the inherent risks of participating in whitewater rafting, and to the extent the Agreements contain inadmissible or unenforceable provisions, those provisions could be redacted therefrom; (2) maritime jurisdiction does not extend to this whitewater rafting case on the Shenandoah River because the Whitewater Responsibility Act is controlling, as the Shenandoah River is not a navigable waterway since it cannot be used for [**383] [*247] commercial shipping; (3) the circuit court failed to make any findings of fact regarding the navigability of the Shenandoah River; (4) assumption of the risk would be an available defense of the actions pursuant to controlling West Virginia law; (5) mandating the application [***18] of maritime law negates the West Virginia Whitewater Responsibility Act, and deprives the defendants of the defense of assumption of the risk, thus rendering all whitewater outfitters uninsurable and crippling a vital State industry; and (6) consolidating the two cases for trial will cause unfair prejudice and insure juror confusion as a result of the intertwining of unrelated legal, factual and damage issues in that one case is a wrongful death case, and the others are personal injury cases. Specifically, Petitioners claim that the circuit court’s consolidation of the two cases will result in the application of maritime law to both actions, prohibiting the defense of assumption of the risk in both.

Conversely, the Christopher plaintiffs argue (1) that maritime law applies because the tort they complain of has a nexus to traditional maritime activity, and because the Shenandoah River is a navigable waterway; (2) that since there is no well- developed substantive maritime law of the issue of whitewater rafting safety, maritime law permits the circuit court to properly look to the West Virginia Whitewater Responsibility Act for guidance 12 and (3) that “[b]ecause there is no federal statute [***19] stating otherwise, the duty under maritime law is the same duty established under West Virginia’s Whitewater Responsibility Act – that commercial whitewater outfitters and commercial whitewater guides ‘conform to the standard of care expected of members of their profession.’ W. Va. Code §20-3B-3.” It appears that the only facet of maritime law that the Respondents wish to have applied to this case is that assumption of the risk is not a defense.

12 Citing Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 46490, 2007 WL 1879172 (S.D. Fla. 2007)(unpublished opinion); Smith v. Haggerty, 169 F.Supp.2d 376 (E.D.Pa. 2001); and Coastal Fuels Marketing, Inc. v. Florida Exp. Shipping Co., Inc., 207 F.3d 1247, 1251 (11th Cir. 2000).

II.

STANDARD OF ISSUANCE OF WRIT OF PROHIBITION

[HN4] The standard for the issuance of a writ of prohibition is set forth in W. Va. Code §53-1-1 (1882): “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers.” In syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) we [***20] held:

[HN5] In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Id., Syl. Pt. 4.

This Court has stated that “. . . [HN6] prohibition. . . against judges [***21] [is a] drastic and extraordinary remed[y] . . . As [an] extraordinary remed[y], [it is] reserved for really extraordinary causes.” State ex rel. United States Fid. & Guar. Co. v. Canady, 194 W. Va. 431, 436, 460 S.E.2d 677, 682 (1995)(citations omitted); State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, [**384] [*248] 2008 WL 2523591 (W. Va. 2008). Thus, we have held that:

[HN7] In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Id. at Syl. Pt. 2 (citing Syllabus Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979)).

In [***22] syllabus point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002), this Court recognized “[i]n [HN8] the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” (quoting Syl. Pt. 2, State ex rel. Williams v. Narick, 164 W. Va. 632, 264 S.E.2d 851 (1980)). “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court.” Syl. Pt. 4, 212 W. Va. 514, 575 S.E.2d 124. “The writ does not lie to correct ‘mere errors’ and . . . it cannot serve as a substitute for appeal, writ of error or certiorari.” Narick, 164 W. Va. at 635, 264 S.E.2d at 854.

This Court further stated in Burnside that:

[t]here is a practical reason for not allowing challenges, by use of the writ of prohibition, to every pre-trial discretionary evidentiary ruling made by trial courts. Such use of the writ would effectively delay trials interminably while parties rushed to this Court for relief every time they disagree with a pre-trial ruling. The fact remains that “[t]he piecemeal challenge of discretionary rulings through writs of prohibition [***23] does not facilitate the orderly administration of justice.” Woodall, 156 W. Va. at 713, 195 S.E.2d at 721. Said another way, “writs of prohibition should not be issued nor used for the purpose of appealing cases upon the installment plan.” Wimberly v. Imel, 1961 OK CR 25, 358 P.2d 231, 232 (Okla. Crim. App., 1961).

212 W. Va. at 519, 575 S.E.2d at 129. Guided by these principles, we proceed to consider the parties’ arguments.

III.

DISCUSSION

Petitioners raise questions regarding three pretrial rulings made by the circuit court on two motions in limine and one motion to consolidate. We note as a preliminary matter that it is this Court’s general practice and procedure to decline to consider rulings on motions in limine. This Court has recognized that “[t]hese [HN9] motions necessarily involve the exercise of discretion, and the correctness of discretionary rulings should ordinarily be challenged at a time when the entire record is available to an appellate court. The piecemeal challenge of discretionary rulings through writs of prohibition does not facilitate the orderly administration of justice.” Woodall v. Laurita, 156 W. Va. 707, 713, 195 S.E.2d 717, 720-21 (1973). Thus, in the absence of jurisdictional [***24] defect, the administration of justice is not well served by challenges to discretionary rulings of an interlocutory nature. These matters are best saved for appeal. State ex rel. Allen v. Bedell, 193 W. Va. at 37, 454 S.E.2d at 82 (Cleckley, J. concurring). As Justice Cleckley cautioned in his concurrence in State ex rel. Allen v. Bedell:

[HN10] Mere doubt as to the correctness of a trial court’s ruling on a motion in limine regarding an evidentiary issue is an insufficient basis to invoke this Court’s writ power. To justify this extraordinary remedy, the petitioner has the burden of showing that the lower court’s jurisdictional usurpation was clear and indisputable and, because there is no adequate relief at law, the extraordinary writ provides the only available and adequate remedy. Thus, writs of prohibition, as well as writs of [**385] [*249] mandamus and habeas corpus, should not be permitted when the error is correctable by appeal.

193 W. Va. at 37, 454 S.E.2d at 82.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency. 13 In reviewing the claims asserted [***25] by Petitioners herein, which allege that the circuit court, by virtue of a motion in limine, made jurisdictional rulings that serve to have a significant and lasting negative impact on the question of liability for an important segment of business within this State, we find it appropriate to accept this matter for consideration at this stage in the proceedings. 14

13 See State ex rel. Foster v. Luff, 164 W. Va. 413, 419, 264 S.E.2d 477, 481 (1980)(prohibition granted where trial court abused discretion in failing to authorize expenditure of adequate funds to allow defense to secure experts); State ex rel. Register-Herald v. Canterbury, 192 W. Va. 18, 449 S.E.2d 272 (1994)(prohibition granted to reverse order constituting prior restraint against newspaper); State ex rel. Tyler v. MacQueen, 191 W. Va. 597, 447 S.E.2d 289 (1994)(prohibition used to review disqualification of prosecutor’s office); State ex rel. Leach v. Schlaegel, 191 W. Va. 538, 447 S.E.2d 1 (1994)(prohibition granted to prevent relitigation of case which was foreclosed because of collateral estoppel); State ex rel. DeFrances v. Bedell, 191 W. Va. 513, 446 S.E.2d 906 (1994)(prohibition used to review decision on lawyer’s [***26] disqualification).

14 Respondents contend that the circuit court’s order of April 15, 2008, cannot be challenged by the Petitioners, or is not before this Court in this extraordinary proceeding, because the Petitioners did not timely oppose the Christopher plaintiffs’ motion in limine asking the circuit court to find that maritime law governed the case. Petitioners admit that a scheduling order required them to file their response to the motion in limine by April 10, 2008, but that through “clerical error” their response was mailed, not faxed, to the clerk and the court on April 10, 2008. Five days later, on April 15, 2008, the circuit court, having not received the mailed response, entered an order granting the motion. To the left of the judge’s signature on the order, there appears a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Petitioners contend that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in [***27] the exclusion of a recognized common law defense in West Virginia, among other findings.

Rule 6(b) of the West Virginia Rules of Civil Procedure [HN11] provides, in part, that “[w]hen . . . by order of court an act is required or allowed to be done at or within a specified time . . . the court for cause shown may at any time in its discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done when the failure to act was the result of excusable neglect. . .” In Pritt v. Vickers, 214 W. Va. 221, 227, 588 S.E.2d 210, 216 (2003), the Court approvingly quotes this statement in 3 Moore’s Federal Practice §16.14: “[a] trial court may modify or amend a scheduling order only when ‘good cause’is shown and the court grants leave to modify.” See also Walker v. Option One Mortgage Corporation, 220 W. Va. 660, 665, 649 S.E.2d 233, 238 (2007)(trial courts should not permit parties to obtain extensions absent a showing of good cause). The record before us does not reveal that Petitioners filed a motion with the circuit court after the April 10, 2008, deadline to permit the belated filing of their response. If they did not, we cannot condone their failure, and [***28] their argument that this Court should, nevertheless, hear their argument that the circuit court incorrectly concluded that maritime law applies and that assumption of the risk is not a defense under that law. We will, however, consider the circuit court’s order of April 15, 2008, in this regard because it raises questions of whether the circuit court has jurisdiction of the subject matter in controversy. Issues of jurisdiction may be raised by this Court sua sponte. Ray v. Ray, 216 W. Va. 11, 13, 602 S.E.2d 454, 456 (2004). Also, “[t]his Court may, sua sponte, in the interest of justice, notice plain error.” Syl. Pt.1, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297, 2008 W. Va. LEXIS 81, 2008 WL 4867068 (W. Va. 2008).

Having made the determination to consider this matter, we limit our review herein to the specific jurisdictional issue of the circuit court’s finding that the rafting incident is governed by maritime law. We decline to address on a writ of prohibition the other issues presented regarding the exclusion of the Releases signed by the plaintiffs and the circuit court’s consolidation of the two cases, to the extent that the circuit court’s rulings were discretionary. As stated above, this Court’s general rule provides that [***29] [HN12] prohibition is ordinarily inappropriate in matters involving a trial court’s pretrial ruling on the admissibility of evidence. State ex rel. Shelton v. Burnside, 212 W. Va. at 518, 575 S.E.2d at 128. Furthermore, “[a] [HN13] decision by a trial court to consolidate civil actions on [**386] [*250] any or all matters in issue under Rule 42(a) of the West Virginia Rules of Civil Procedure will be deferentially reviewed under an abuse of discretionary standard.” State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).

[HN14] A trial court, pursuant to provisions of Rule 42, has a wide discretionary power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil actions for a joint hearing or trial will not be reversed in the absence of a clear showing of abuse of such discretion and in the absence of a clear showing of prejudice to any one or more of the parties to civil actions which have been so consolidated.

Syl. Pt. 1, Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971); State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).

Herein, Respondents allege that the instant [***30] petition should not be considered because Petitioners never requested that the circuit court set forth a detailed order including findings of fact and conclusions of law that support and form the basis of its decision, or informed the circuit court that it intended to seek an extraordinary writ to challenge the court’s ruling. We held in State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 367, 508 S.E.2d 75, 84:

[HN15] A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.

Syl. Pt. [***31] 6, 203 W. Va. 358, 508 S.E.2d 75.

While we recognize that there is generally a duty on the part of a party petitioning this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court to make a request that the trial court set forth findings of fact and conclusions of law prior to seeking prohibition, we will proceed to consider the maritime issue before us since it concerns a distinct issue of law involving the interpretation and application of a federal statute which may be resolved on the pleadings, orders and arguments before us. This Court has, on prior occasions, recognized that [HN16] when we are able to resolve issues before the Court without a detailed order, it is not necessary to remand for the circuit court to provide findings of fact and conclusions of law. See, e.g., Pruitt v. W. Va. Dep’t of Pub. Safety, 222 W. Va. 290, 664 S.E.2d 175 (2008)(citing Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997))(this Court is able to resolve issues before us without a detailed order and thus have no reason to remand for the circuit court to provide findings of fact and conclusions of law). See also Toth v. Board of Parks and Recreation Com’rs, 215 W. Va. 51, 55, 593 S.E.2d 576, 580 (2003); [***32] Ward v. Cliver, 212 W. Va. 653, 656, 575 S.E.2d 263, 266 (2002). [HN17] Based upon the jurisprudence of the United States Supreme Court and the statutory laws of the State of West Virginia, we find, as a matter of law, that the activity of whitewater rafting does not invoke federal admiralty jurisdiction.

The question of whether or not the rafting accident on September 30, 2004, is governed by general maritime law presents a federal admiralty jurisdictional question. 15 Herein, [**387] [*251] the circuit court concluded that because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. The circuit court order cites to the decision Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 623, 133 L. Ed. 2d 578 (1996), as support for its ruling.

15 [HN18] The United States Constitution provides in relevant part that “[t]he judicial Power shall extend. . . to all Cases of admiralty and maritime jurisdiction. . .” U.S. Const. Art. III, §2, cl. 1. Pursuant to 28 U.S.C.A. §1333(1948 and 1949), “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in [***33] all cases all other remedies to which they are otherwise entitled.” The United States Supreme Court interpreted this section in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2494, 91 L. Ed. 2d 174 (1986) stating:

[HN19] the “savings to suitors” clause . . . allows litigants to bring in personam maritime actions in state courts. See Judiciary Act of 1789, §9, 1 Stat. 76 (“savings to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it”); 28 U.S.C. §1333 . . . See also Madruga v. Superior Court, 346 U.S. 556, 560, n. 12, 74 S.Ct. 298, 300, n. 12, 98 L.Ed. 290 (1954) . . . The “savings to suitors” clause leaves state courts competent to adjudicate maritime causes of action in proceedings in personam and means that “a state, ‘having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit’ so long as it does not attempt to [give in rem remedies or] make changes in the ‘substantive maritime law.'” [citations omitted]. Stated another way, the “savings to suitors” clause allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state [***34] law may be used to remedy maritime injuries is constrained by a so-called “reverse-Erie” doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.

477 U.S. at 222, 106 S.Ct. at 2494. See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3672, and Am.Jur.2d Admiralty §108.

Yamaha, 516 U.S. 199, 116 S.Ct. 619, 133 L. Ed. 2d 578, involved a collision between a twelve-year-old on a rented jet-ski and another recreational vehicle in territorial waters of the United States off a hotel frontage in Puerto Rico. The Yamaha Court found that because the case involved a watercraft collision on navigable waters, it fell within admiralty’s domain. 516 U.S. at 206, 116 S.Ct. at 623. The Yamaha Court then cited to its other previous decisions in Sisson v. Ruby, 497 U.S. 358, 361-367, 110 S.Ct. 2892, 2895-2898, 111 L. Ed. 2d 292 (1990), and Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 2659, 73 L. Ed. 2d 300 (1982), which set forth [HN20] the admiralty or maritime jurisdiction test for tort claims. “The test ‘comprises two functional inquiries: first, the traditional “situs” analysis determining whether the tort was committed or the alleged injury occurred on navigable [***35] waters, and second, the more recently developed “nexus” analysis determining whether the alleged tort bears a significant relationship to traditional maritime activities.” Sisson, 497 U.S. at 361-367, 110 S.Ct. at 2895-2898.

Subsequently, in Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024 (1995), the Supreme Court stated:

After Sisson, then, [HN21] a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must “assess the general features of the type of incident involved,” 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has “a potentially disruptive impact on maritime commerce,” id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to [***36] traditional maritime activity.” Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.

513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024. Thus, according to Grubart, federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity giving rise to the incident had a substantial relationship to traditional maritime activity. 16

16 The Fourth Circuit has recognized the Grubart jurisdictional test. See Brock v. Lewis, 86 F.3d 1148 (4th Cir. 1996)(unpublished opinion). Other publications that provide discussion of the criteria for determining admiralty jurisdiction include:1 The Law of Maritime Personal Injuries §10.1 (5th ed.)(2007)(stating that “[t]here is no doubt that [HN22] under the current law recreational boating activities that give rise to personal injuries or death fall within admiralty jurisdiction if they satisfy the locus and nexus criteria for admiralty tort jurisdiction.”; See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3676; Admiralty Jurisdiction: Maritime Nature of Torts – Modern Cases, 80 A.L.R. Fed. 105 (2008).

[**388] [*252] Based upon the United [***37] States Supreme Court’s holding in Grubart, [HN23] in order for the circuit court to find that general maritime law applies, it should have properly determined whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity. Failing to conduct such an analysis, the circuit court’s order of April 15, 2008, concluded, in a single sentence, that “because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law.” From its order, the circuit court appears to have only considered the first prong of the Grubart test in arriving at its conclusion that maritime law applied. 17

17 It is not necessary for this Court to discuss the propriety of the circuit court’s findings regarding the location requirement to the extent that we find that the second part of the Grubart test is not satisfied. [HN24] A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. With that said, we note that the circuit court provided [***38] no standards whereby it determined that the Shenandoah River is in fact a navigable river, and no facts to which it applied standards to make that determination. Based on the limited set of facts we have reviewed herein, we question how a river with average relevant depths of two feet that was used for whitewater rafting purposes could possibly be considered a navigable waterway for purposes of maritime jurisdiction.

In addition to determining whether the incident occurred on navigable waters, the circuit court should have also analyzed whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” in order to satisfy the second nexus criterion. Applying the second prong of the Grubart test to the circumstances of the instant case, we find that [HN25] the activity of whitewater rafting does not constitute traditional maritime activity and is therefore not governed by maritime law.

First, given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to [***39] the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted. 19 However, even assuming, for the sake of argument, that the incident that occurred during this whitewater rafting trip had a potentially disruptive impact on maritime commerce, it still did not bear a substantial relationship to traditional maritime activity.

18 This fact was represented by both the Petitioners and the Respondents.

19 See Grubart, 115 S.Ct. at 1051 (the relevant inquiry is whether the general features of the mishap place it within a class of incidents that pose more than a fanciful risk to commercial shipping.)

The cases before us involve an unfortunate incident that occurred during the course of a recreational outing on a river that was unusually swollen with flood waters resulting from a hurricane. They do not concern piloting, shipping, or navigational error, or other aspects of traditional maritime activity. Foster v. Peddicord, 826 F.2d 1370, 1376 (4th Cir. 1987). The requisite maritime connection is therefore missing.

It is particularly relevant that there is no existing federal or state precedent applying admiralty jurisdiction to the activity of whitewater [***40] rafting. Perhaps this is because the very nature of the activity of whitewater rafting is not the customary mode of travel or transportation with which maritime law has ever been concerned. Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raft in rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity. For these reasons, we conclude that the circuit court committed clear error in determining [**389] [*253] that maritime law applies to the instant cases.

IV.

CONCLUSION

Accordingly, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law. We remand this matter to the circuit court for entry of an order consistent with this opinion.

Writ granted as moulded.

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West Virginia Whitewater Responsibility Act.

West Virginia Whitewater Responsibility Act. 

Chapter 20.  Natural Resources.

Article 3B. Whitewater Responsibility Act.

GO TO WEST VIRGINIA STATUTES ARCHIVE DIRECTORY

W. Va. Code Ch. 20, Art. 3B Notes (2014)

Article 3B. Whitewater Responsibility Act. Notes

A.L.R. references.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 A.L.R.5th 513.

§ 20-3B-1.  Legislative purposes.

Every year, in rapidly increasing numbers, the inhabitants of the State of West Virginia and nonresidents are enjoying the recreational value of West Virginia rivers and streams. The tourist trade is of vital importance to the State of West Virginia and the services offered by commercial whitewater outfitters and commercial whitewater guides significantly contribute to the economy of the State of West Virginia. The Legislature recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.

Exemption from tort liability.

Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Quoted in

River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

Cited in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

W. Va. Law Review.

Fahey, “Landlord Liability in West Virginia for Criminal Acts on the Premises,” 98 W. Va. L. Rev. 659 (1996).

§ 20-3B-2.  Definitions.

Unless the context of usage clearly requires otherwise:

(a) “Commercial whitewater outfitter” means any person, partnership, corporation or other organization, or any combination thereof, as defined in section twenty-three [§ 20-2-23], article two of this chapter.

(b) “Commercial whitewater guide” means any person as defined in section twenty-three [§ 20-2-23], article two of this chapter.

(c) “Participant” means any person using the services of a commercial whitewater outfitter or commercial whitewater guide on any river, portions of rivers or waters of the State.

Quoted in

Murphy v. North Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

§ 20-3B-3.Duties of commercial whitewater outfitters and commercial whitewater guides.

(a) All commercial whitewater outfitters and commercial whitewater guides offering professional services in this State shall provide facilities, equipment and services as advertised or as agreed to by the commercial whitewater outfitter, commercial whitewater guide and the participant. All services, facilities and equipment provided by commercial white-water outfitters and commercial whitewater guides in this State shall conform to safety and other requirements set forth in article two [§§ 20-2-1 et seq.] of this chapter and in the rules promulgated by the commercial whitewater advisory board created by section twenty-three-a [§ 20-2-23a], article two of this chapter.

(b) In addition to the duties set forth in subsection (a) of this section, all commercial whitewater guides providing services for whitewater expeditions in this state shall, while providing such services, conform to the standard of care expected of members of their profession.

Exemption from tort liability.

This section imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Whitewater rafting not governed by maritime law.

In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

Cited in

Pingley v. Perfection Plus Turbo-Dry, LLC, 2013 W. Va. LEXIS 422 (Apr 26, 2013).

§ 20-3B-4.Duties of participants.

(a) Participants have a duty to act as would a reasonably prudent person when engaging in recreational activities offered by commercial whitewater outfitters and commercial whitewater guides in this State.

(b) No participant may:

(1) Board upon or embark upon any commercial whitewater expedition when intoxicated or under the influence of nonintoxicating beer, intoxicating beverages or controlled substances; or

(2) Fail to advise the trip leader or the trip guide of any known health problems or medical disability and any prescribed medication that may be used in the treatment of such health problems during the course of the commercial whitewater expedition; or

(3) Engage in harmful conduct or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person or personal property; or

(4) Perform any act which interferes with the safe running and operation of the expedition, including failure to use safety equipment provided by the commercial whitewater outfitter or failure to follow the instructions of the trip leader or trip guide in regard to the safety measures and conduct requested of the participants; or

(5) Fail to inform or notify the trip guide or trip leader of any incident or accident involving personal injury or illness experienced during the course of any commercial whitewater expedition. If such injury or illness occurs, the participant shall leave personal identification, including name and address, with the commercial whitewater outfitter’s agent or employee.

§ 20-3B-5.Liability of commercial whitewater outfitters and commercial whitewater guides.

It is recognized that some recreational activities conducted by commercial whitewater outfitters and commercial whitewater guides are hazardous to participants regardless of all feasible safety measures which can be taken.

(a) No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two [§§ 20-2-1 et seq.] of this chapter, by the rules of the Commercial Whitewater Advisory Board, or by the duties placed on such commercial whitewater outfitter or commercial whitewater guide by the provisions of this article.

(b) The limitations on liability created by this article apply only to commercial whitewater outfitters li-censed under the provisions of article two of this chapter and to commercial whitewater guides who are agents or employees of licensed commercial whitewater outfitters, and only when the commercial whitewater outfitter or commercial whitewater guide is acting within the course of his employment.

Exemption from tort liability.

Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Whitewater rafting not governed by maritime law.

In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

 

 

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Negligence suit over injuries from falling out of a raft that was rented from outfitter. Release was part of raft rental contract.

Federal District court grant’s motion for summary judgment on release language in a rental agreement with multiple signatures from renters on one page. Scary!

Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206

Date of the Decision: August 22, 2013

Plaintiff: Cari J. Wroblewski

Defendant: Ohiopyle Trading Post, Inc.

Plaintiff Claims:

Defendant Defenses: release in raft rental agreement

Holding: for the defendant

The plaintiff had recently gone rafting on the Salt River in Arizona. Two months later she with her friends rented a raft and equipment from the defendant to a raft the Youghiogheny River. The Youghiogheny River is a Class III run although it allegedly borders on Class IV at certain water levels.

Once the water level rises above a certain level the defendant is allowed to operate as a guide service and run river guides with its customers.

While the plaintiff was taking a long time in the restroom, the rest of her group talked to the defendant’s employees about the high water and declined a guided service. The normal price of a guided trip is $60 per person. The rental cost is $20 per person. The defendant offered to add a guide to the trip for $40 per person, a $20 per person discount from the regular price.

After leaving the restroom the plaintiff testified that she was rushed to sign the release and get her “stuff.” The court took note that the plaintiff was not the last person to sign the release. “Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement.”

After signing the release and getting her gear the plaintiff received a safety briefing and then was sent down the river. During one of the final rapids, the plaintiff fell out of the boat and “was dragged under water and struck her knee on a rock, sustaining serious injuries.”

The case was filed in Federal District Court, which is the trial court, and the opinion is the court’s which was used to grant the defendants motion for summary judgment.

Summary of the case

The court pointed out several issues that the court, and the plaintiff identified. The release started half-way down the page and was titled “Terms and Conditions.” Multiple lines were provided where the parties all signed the same document. Additional legal information was found under section identified as “SAFETY PRECAUTIONS” and “RECOMMENDATIONS.” The overall title of the document was “Rental Agreement.” The court did point out that the font used in the form was small but sufficient.

The plaintiff argued the release was not enforceable because:

…Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees.

The court then went through the cases in Pennsylvania that had thrown the release out. However, in each case this court found the facts were different or the case was not applicable to this one.

The statement of the court as to the relationship between a party signing a release for recreational activities and one for other purposes sets recreational releases apart.

Plaintiff voluntarily chose to engage in the sport of white-water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white-water rafting trip with her group. (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or not, in the activity, and, therefore, is free to sign, or not, the release form.”)

The court also took on issues the plaintiff did not identify, which is whether or not the plaintiff attempted to negotiate the release terms. As it has been pointed out several times in other cases, the opportunity or not to negotiate an activity without signing a release or to change a release may void the release.

There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.

The court also eliminated the plaintiff’s argument she did not understand what she was signing in one sentence. “Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.” The court stated the “Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white-water rafting.”

The court held the release stopped the plaintiff’s claims.

The Release, even when construed against Defendant, clearly spelled out the parties’ intention to release defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s motion for Summary Judgment is granted.

So Now What?

Remember a release that is involved in litigation is one that is poorly written. Well written releases do not end up in front of judges and juries. This court upheld the release but in doing so pointed out several issues that in other jurisdictions or maybe in Pennsylvania with different fact patterns would have held the other way.

First, the document was a rental agreement. It was labeled as such and most of the information the court pointed out was based on rental information. You may be able to combine a rental agreement and a release in one document; however, you should clearly label the document as such.

What was amazing is in the day and age when this accident happened, 2010, that a recreation business was still using a sign-in sheet as a release. You don’t buy a house on the same document as your neighbor used. Why would you risk your business by using a document signed by multiple people that defend against a multi-million dollar lawsuit?

Add to that the print size, the release language divided into three different columns in the document and the plaintiff’s arguments that she was hurried; this is a thank heaven’s decision.

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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