Push a release too far, in a state that is not sure Releases should be valid, and you provide the court with the opportunity to void releases and indemnification in the state.

Non-mother brought a group of kids to climbing gym and signed release for the kids. One was hurt, and the climbing wall sued the non-mother for indemnification in the release for the damages of the injured child.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut; Superior Court of Connecticut

Plaintiff: Cindy Cannon PPA Emma Cannon (minor)

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Defendant Third Party Plaintiffs: Kate Licata, Indemnifier

Plaintiff Claims: negligent in supervising the rock climbing activities

Defendant Defenses: release and indemnification

Holding: For the Defendant Third Party Plaintiff, Indemnifier

Year: 2020

Summary

When litigating a case, you don’t look to the future effects of what you are doing. You look at winning. That is the only thing, your client and the client’s insurance company want. That is the only thing as an attorney you are allowed to do. You must represent the client and win.

In this case, the defendant used every argument they could to try to win, and not only lost the case, but voided releases for recreation in the state an eliminated any value the indemnification clause might have had in a release.

Facts

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019. The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The defendant argued on appeal that:

Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis.

It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition.

Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

These three arguments made by the defendant are critical in how the court viewed the situation and more importantly the realities of using this type of document in a recreation case.

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

The court first set out the requirements to win a motion for summary judgment. In doing so it defined the term “a material fact.” “A material fact is a fact that will make a difference in the result of the case….”

“[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.

Summary judgment will not be granted if there is a material fact in question. So knowing the definition is important since most summary judgement claims revolve around whether there is a material fact that must be adjudicated.

The court then looked at the indemnification clause in the release; contractual indemnification. Under Connecticut law, indemnification is defined as:

Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification

Indemnification agreements are contracts and as such construed under the principles of contract law.

The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation

Additionally, for a contract to be valid, there must be mutual assent between the parties to create a contract and the parties to the contract must be reasonably clear.

The court then looked at the indemnification language in the release in this case.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The court did point out, but did not act upon the issue that release was not signed by anyone at the gym.

The court then looked at release law in Connecticut. The Supreme Court of Connecticut set forth three requirements for a release in a recreational activity to be valid.

(1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis.

The court then found that the release in this case violated public policy in Connecticut.

We conclude that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Meaning, a release cannot be used to protect the provider of a recreational activity that is open to the public and requires skill because there is a general expectation that those activities are safe. On top of that, the plaintiff lacked any knowledge, experience or skill to determine if the defendants’ facility were in good working order or safe.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

The court looked at the statements from the guest’s point of view and found it illogical that the guest could make those judgements.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The defendant also argued the release was an adhesion contract.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.

Because the plaintiff could not negotiate the release provisions, and her only option was not to participate, because of that, the court concluded the contract was an adhesion contract.

The court circled back to the knowledge and skill of the guest by looking at the facts, that the guests and injured child did not bring any equipment or provided any training, guidance and/or supervision to the children under the third party plaintiff’s care.

Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children.

Because the third party plaintiff had no knowledge or skill concerning climbing, she could not have been supervising the children while climbing, it does not matter whether or not she was “adequately supervising” the children because she could not. This created another whole in the indemnification argument and another issue that must be decided by the trial court.

This brought the court back to the indemnification issue.

To hold a third party liable to indemnify one tortfeasor for damages awarded against it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

The definition in Connecticut basically ruled out the third party plaintiff as a possible indemnifier for the gym.

“Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.”

Since the third party defendant did not have any control over the situation because she lacked the knowledge, experience and skill to climb or supervise anyone else climbing and because she, and the children went to the gym because of the gym’s knowledge, skill, ability to see risks and the gym had the needed equipment, there could not be indemnification.

On top of that, because the court found the climbing gym had done such a poor job of prosecuting it’s indemnification claim the court found the claim had been abandoned.

The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”

That means the indemnification claim could not be brought back up at trial.

So Now What?

There is a dozen interesting statements found in this release that when brought to the light of reality will cause or should cause concern for the way some releases are written. Not legal as much as how the assumptions on how the law would work when applied to the facts which the court rejected.

  1. Having signor of the release accept the equipment and facility as is or to be in good shape, was determined to be a joke. The signor was coming to the facility for their expertise and had no expertise to make that determination on their own.

You don’t want to have your release thrown out because a clause in the release, no matter who it protects is false.

  1. Having the signor of the release agree that they are in control of the children they bring to the gym was found ridiculous for the same reasons.
  2. The Indemnification clause was not written to follow Connecticut law and as such was found to be worthless.
    1. Worse when argued by the defendant gyms, it was found the language, and their arguments were so futile as to be abandoned.
  3. The release placed so many burdens, which the signor could not get around; the release was found to be void because it violated public policy.

I have yet to read a case where an indemnification clause has been upheld in a release, unless the circumstances were very odd and the parties knowledgeable about what they were agreeing too.

Are there situations where there is a need, and you can properly write an indemnification clause in a release. Yes. However, the injured part will be indemnifying you not for your losses, but for the losses you incur when their actions involve a third party.

An example might be you are billed for the cost of search and rescue under your permit or concession agreement to find the lost guest. A well-written indemnification clause can be used to recover for the costs of these expenses, because the defendant did not cause the loss and is not trying to recover for its losses, only the losses the guest has made the defendant liable for.

The three arguments made by the defendant set forth in the summary will soon be present in many third party defenses I predict. They are simple yet set forth the reality of the people signing the indemnification clauses. Uniformly, the courts have struck down indemnification clauses when used to recover money for a plaintiff’s claim.

For more articles on Indemnification Clauses see:

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook.

New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky-diving case.

Indemnification agreements? What are you signing?

One case where an indemnification agreement was upheld:

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

This case will have far reaching effect in other states.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

No Shepard’s  Signal™
As of: April 9, 2020 8:28 PM Z

Cannon v. Rock Climb Fairfield, LLC

Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport

February 13, 2020, Decided; February 13, 2020, Filed

FBTCV186079642S

Reporter

2020 Conn. Super. LEXIS 261 *

Cindy Cannon PPA Emma Cannon v. Rock Climb Fairfield, LLC et al.

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

Judges:  [*1] Richard E. Arnold, Judge Trial Referee.

Opinion by: Richard E. Arnold

Opinion

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #142

The third-party defendant Kate Licata has moved for summary judgment on Counts One and Two of the Cross Complaint filed by the defendants third-party plaintiffs, Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy.1 Count One of the cross complaint alleges contractual indemnification and Count Two alleges common-law indemnification. The cross complaint is dated February 22, 2019. The third-party defendant Licata’s motion for summary judgment is dated September 9, 2019. The defendant third-party plaintiff’s objection is dated October 14, 2019.2 Licata’s reply to the objection is dated October 17, 2019. The court heard oral argument on October 21, 2019.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock [*2]  climbing activities, thereby causing the minor plaintiff’s injuries.3 The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing [*3]  activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release [*4]  form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The plaintiff cross claim defendant, Licata, argues that the defendants cross claim plaintiffs’ claims are void as against public policy as a result of the decision in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), [*7]  regarding any waiver signed by Licata, and any waiver signed by Licata was a contract of adhesion. Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis. It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition. Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

I

Summary Judgment

The legal standard governing summary judgment motions is well settled. Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book §17-49. “A material fact is a fact that will make a difference in the result of the case . . . The facts [*8]  at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013).

“The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). “Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) [*9]  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Consequently, on a motion by defendant for summary judgment the burden is on the defendant to negate each claim as framed by the complaint. Squeo v. Norwalk Hospital Ass’n, 316 Conn. 558, 594, 113 A.3d 932 (2015). “It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

“A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013). “Because litigants ordinarily have a constitutional right to have issues [*10]  of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004).

II

Additional Discovery Argument

In their objection to summary judgment, the RCF defendants argue several times that summary judgment would be inappropriate because discovery is not complete. The court has before it the scheduling orders submitted by the parties, as signed by legal counsel for the RCF parties and the plaintiff. These scheduling orders filed on February 22, 2019,were approved by the court (Kamp, J.) on March 7, 2019.6 The approved scheduling order listed September 30, 2019, as the date by which all discovery was to be completed. There have been no requests to modify the scheduling order or to extend the dates for the completion of discovery.7 The court has before it the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document and further additional information submitted by the parties to allow the court to move forward, including the transcript of the deposition [*11]  testimony of Nora Maklad and employee of RCF. There is no indication that the defendants have sought more information through the discovery process or that Licata has objected to, obstructed or delayed the discovery process. The court has a one hundred and twenty-day time limitation to issue its decision and the court will do so within that time limit with the information that is available, as a trial date assignment is pending.

III

Contractual Indemnification

Count One of the Rock Climb defendants’ third-party complaint against Licata alleges contractual indemnification. “Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements [*12]  of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.” (Citations omitted; internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).

“As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law.”
Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264 (January 25, 2007, Owens, J.T.R.); 42 Conn. L. Rptr. 843, 2007 Conn. Super. LEXIS 245; see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). “The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.” Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628, 2008 Conn. Super. LEXIS 414 (February 15, 2008, Bentivegna, J.), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

“[I]n order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . and the identities of [*13]  the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981); BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). “[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct.” Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). “[Allegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . .”(Citation omitted; internal quotation marks omitted.) Fisher v. Countrywide Home Loans, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-4008690-S, 2011 Conn. Super. LEXIS 32 (January 7, 2011, Roche, J.).

As noted, herein, the contract relied upon by the Rock Climb defendants is the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document that has been submitted for the court’s review. It was admittedly signed by Kate Licata on October 3, 2016, the date of the alleged incident, wherein the minor child was injured. The document bears the name of the minor child [*14]  and her date of birth. It lists the e-mail address of Licata and Licata’s electronic signature.

Paragraph 1 of the document titled “activities and risks” lists indoor wall climbing and bouldering as activities. Risks include, among other things: falling from climbing surfaces; persons climbing out of control or beyond personal limits; over-exertion; inadequate physical conditioning; and the negligence of other persons, including other visitors. The document states that the risks described in the document “are inherent in RCF activities . . . and cannot be eliminated without jeopardizing the essential qualities of the activity.”

Paragraph 2, titled “Assumption of Risks” states:

I accept and assume all the risks of a visit to RCF activity sites, inherent or not and whether or not described above, If the visitor is a minor of whom I am parent or legal guardian, I have explained the risks to the minor visitor, who understands them and wishes to visit and participate in RCF activities in spite of the risks.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges [*15]  and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The Release bears a signature line and date line for the “parent or legal court appointed guardian. As stated, it is signed by Kate Licata and dated October 3, 2016. The document is not signed by the RCF defendants or any agent, servant or employee of the RCF defendants.

Licata, in moving for summary judgment, argues the “Release of Liability and Assumption of Risk” document is void as against public policy and unenforceable against her. Her argument relies upon the decisions in Hanks v. Powder Ridge Restaurant Corporation, 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006).

In Hanks [*16] , the plaintiff, a patron, brought his three children and another child to Powder Ridge to snow-tube. Neither the plaintiff or the children had ever snow-tubed at Powder Ridge, but the snow-tubing run was open to the public generally, regardless of prior snow-tubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. In order to snow-tube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability.” The plaintiff read and signed the agreement on behalf of himself and the four children. While snow-tubing, the plaintiff’s right foot became caught between his snow-tube and the man-made bank of the snow-tubing run, resulting in serious injuries that required multiple surgeries to repair. Id., 316-17. The plaintiff alleged that the defendants negligently caused his injuries in several ways. Id. The defendants denied the plaintiff’s allegations of negligence and asserted two special defenses. “Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Id., 318-19.

In Hanks, our Supreme Court determined that even though the exculpatory agreement purporting to release the defendants from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct was well drafted, it nonetheless violated public policy. In finding the agreement violated public policy, the Supreme Court reversed [*17]  the trial court’s granting of summary judgment for the defendants. Id., 321-26.

In Hanks, snowtubing was the recreational activity at issue. Our Supreme Court placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34. The court recognized the clear public policy in favor of participation in athletics and recreational activities. Id., at 335.

In Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153, the plaintiff was an experienced horseback rider, who was injured while riding one of the defendant’s horses. The plaintiff subsequently challenged the validity of a release document similar to the one in Hanks, and in this case, wherein the defendant sought to insulate itself from liability. Reardon found that the decision in Hanks was controlling in determining the validity of the release and indemnity agreement.

We conclude [*18]  that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Id., 161.

Additionally, in [*19]  the present case, as in Hanks, the plaintiff “lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any hidden dangers associated with the recreational activity including the [*20]  temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

(Internal citations and quotation marks omitted.) Id., 161-62.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms. In the present case, signing the release [*21]  provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

(Internal citations and quotation marks omitted.) Id., 162-63.

It is also noted that the court in Reardon did not limit its decision to the sport of horseback riding or the activity of snowtubing which was the activity in Hanks. “The list of recreational activities that we identified in Hanks was meant to be illustrative, not exhaustive. [*22]  Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks decision.” Id., 165-66. The court finds that the factors considered in Hanks v. Powder Ridge Restaurant Corporation, supra, 276 Conn. 314 and Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153 apply to the activities of bouldering and rock climbing which are present in the case before this court.8

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees.9 Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” [*23]  or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the [*24]  risk more effectively then the defendants.” Reardon v. Windswept Farm, LLC, supra, 280 Conn. 162-63. The RCF release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34.10

The RCF parties additionally argue that it is improper to allow Licata to avail herself of arguments based on public policy when she in turn violated public policy by signing the Release and Indemnification Agreement when she was not the parent or legal guardian of the minor plaintiff, Cannon. They argue Licata violated societal expectations and norms in signing the document and now disclaiming responsibility. They declare that Licata is the wrongdoer and should not be allowed to walk away from this issue.

Licata in her reply to the RCF objection to summary judgment argues that the RCF defendants have cited no authority for their position that Licata’s signing of the release document on behalf of the minor, Emma Cannon constituted a violation of public policy; nor have they explained why such a violation would restrict Licata from challenging the validity of the waiver. Licata also questions why the RCF defendants would make this argument, given that the sole basis [*25]  for the contractual indemnification claim against Licata is her signing of the release document is which they now assert violated public policy. The court agrees. If the signing of the release was invalid, then it would stand to reason that the release itself is invalid. The RCF defendants, by their own reasoning would be attempting to enforce an agreement, which they themselves claim is invalid.

For the reasons set forth herein, the court grants Licata’s motion for summary judgment on Count One of the Rock Climb defendants’ third-party complaint against Licata alleging contractual indemnification.

IV Common-Law Indemnification

In Count Two of the cross claim, the RCF defendants allege common-law indemnification. Therefore, the court reviews our law concerning common-law indemnification, as set forth in Valente v. Securitas Sec. Services, USA, Inc., 152 Conn.App. 196, 203-04, 96 A.3d 1275 (2014). Citing, Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965), the Appellate Court in Valente, supra, noted that “[g]enerally, there is no right to indemnification between joint tortfeasors.” Kaplan v. Merberg Wrecking Corp., supra, recognized an exception to this general rule. “Kaplan teaches that indemnification is available from a third party on whom a primary exposure of liability is claimed to rest. To hold a third party liable to indemnify one tortfeasor for damages awarded against [*26]  it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.” (Citation omitted.) Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04. “Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.” (Internal quotation marks omitted.) Id., citing, Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012) (dangerous condition held to be electric power line which electrocuted plaintiff), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).

The court has reviewed the objection to the motion for summary judgment filed by the RCF defendants and notes, as pointed out by Licata in her reply brief, that the RCF defendants have [*27]  not addressed Licata’s claim in her motion for summary judgment that she did not control the situation that prevailed at the RCF’s facility on the date of the minor’s injury; nor is it alleged in the cross claim that Licata controlled the situation. An essential element of common-law indemnification is that the third party, Licata, was in control of the situation to the exclusion of the third-party plaintiffs. Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04; Pellecchia v. Connecticut Light & Power Co., supra, 139 Conn.App. 775. The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court. Connecticut Light and Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

For the foregoing reasons discussed, herein, Licata’s motion for summary judgment is granted as to Count Two alleging common-law indemnification.

ORDERS

Licata’s Motion for Summary Judgment is granted as to Count One, which alleges contractual indemnification and Count [*28]  Two, which alleges common-law indemnification.

THE COURT

Judge Richard E. Arnold,

Judge Trial Referee

End of Document


Convoluted procedural issues at the trial court, created a ripe field for confusion, but the appellate court held the release bard the claims of the plaintiff in the skier v. skier collision where the ski resort was also sued.

Once the jury found there was no gross negligence on the part of the plaintiff, the release stopped all other claims of the plaintiff.

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

State: California Court of Appeals, Fourth District, Third Division

Plaintiff: Grant Tuttle et al

Defendant: Heavenly Valley, L.P.

Plaintiff Claims: negligence

Defendant Defenses: …implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

Holding: For the Defendant

Year: 2020

Summary

Reading the case is confusing. A lot of the decision revolves around stipulated jury special verdict form and how the case was decided at the trial level after the jury rendered a verdict. The verdict was sort of in favor of the plaintiff; however, the stipulated part of the proceedings were used by the judge to hold for the defendant.

The plaintiff, deceased, season pass holder was hit on the slopes by a snowboarder. Her family sued the snowboarder and the ski area. The jury held the ski area was negligent but not grossly negligent. Because the deceased plaintiff had signed a release, the release stopped the negligence claims.

Facts

The jury found the plaintiff negligent, but not grossly negligent. The judge then ruled the release removed the duty on the party of the defendant so therefore the defendant was not liable.

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

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

The appellate court first looked at the release. The first analysis is what made this case stand out.

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all.

You cannot sue, because you assume the inherent risks of a sport. Therefore, a release that only protects the defendant from the inherent risks is worthless, as stated by the court.

To help everyone understand the statement above made by the court, the court reviewed Assumption of the Risk under California law.

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

[Emphasize added]

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.

[Emphasize added]

If a defendant increases the risk to participants, then the defendant is liable for any injury to a participant that occurs because of the increase in risk caused by the defendant. However, a participant may still choose to participate and may still be stopped from suing for injuries received from the increased risk if the participants know of the risks and voluntarily assumes the risk. This is called Secondary Assumption of the Risk.

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.

Secondary Assumption of the risk is part of the defenses a release provides to a defendant. However, a release provides broader and more defenses then Secondary Assumption of the risk provides. On top of that, by signing a written document, the risk outlined in the release, if any, are assumed by the participant because the document is (and should be) a release and an Express Assumption of the Risk document.

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

Not all court think exactly along these lines when reviewing releases. However, many do and all courts reach the same conclusion, just by different legal analysis.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.’

[Emphasize added]

Assumption of the risk is a great defense. However, a release provides a greater defense, a better defense and should, if properly written to incorporate the defenses available in all types of assumption of the risk.

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ ([courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is one caveat with all of this. If they actions of the defendant in changing the risk, increase the risk to the level of gross negligence, a release in most states does not act to bar gross negligence.

As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.

The court then summed up its review of the defenses of assumption of the risk and release.

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

[Emphasize added]

In reviewing the release the appellate court found it stopped the negligence claims of the plaintiff.

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence.

The court then applied its ruling on the release to the plaintiff’s argument that the defendant was grossly negligent.

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment.

The rest of the case then goes on to evaluate the appellate court’s findings and the different way the court came to its ruling at the trial court level.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; however, the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law.

The defendant won because the jury did not find the defendant was grossly negligent, and the release stopped all other claims of the plaintiff.

So Now What?

There are several things to learn from this case. The first is the intricacies, procedures and rulings that the trial system has, make any trial a nightmare now days. It is nothing like TV, more like a game of war played out on a board with dozens of books or rules that must be consulted before every move.

The second is the value and power of a release. Even after the plaintiff won the trial, the release came back into to play to defeat the claims of the plaintiff.

Thirdly the education the court provided and copies into this post about assumption of the risk as a defense, the different types of assumption of the risk and how your release should incorporate assumption of the risk.

Make sure your release incorporates assumption of the risk language and is written to protect you in the state where you are doing business for the business you are running.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Grant Tuttle et al., Plaintiffs and Appellants,

v.

Heavenly Valley, L.P., Defendant and Respondent.

G056427

California Court of Appeals, Fourth District, Third Division

February 5, 2020

NOT TO BE PUBLISHED

Appeal from a judgment and postjudgment orders of the Superior Court of Orange County No. 30-2015- 00813230 Nathan R. Scott, Judge. Affirmed.

The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

OPINION

DUNNING, J. [*]

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.[ 1] Defendant asserted as defenses the doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant ;unreasonably increased the risks… over and above those inherent in the sport of skiing. The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

A judgment in plaintiffs’ favor typically would have followed as a matter of course unless defendant formally moved for, and was granted, a judgment notwithstanding the verdict (JNOV). However, the trial court determined the jury’s factual finding that defendant was not grossly negligent, coupled with its legal conclusion that the release provided a complete defense to plaintiffs’ lawsuit, compelled entry of a judgment in defendant’s favor, even without a posttrial JNOV motion.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.

THE RELEASE

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.[ 2] The release begins with an all-capital advisement: WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS. Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. In paragraph 2, she ASSUME[D] ALL RISKS… known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions;… variations in terrain; design and condition of man-made facilities and/or terrain features;… [and] collisions. Paragraph 5 advised: The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably avoided without changing the nature of the Activities.

Paragraph 6 included Tuttle’s express agreement NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY… for… injury or loss to [her], including death. This paragraph specifically advised that Tuttle was releasing all CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE…. In paragraph 13, Tuttle agreed the release was binding to the fullest extent permitted by law… on [her] heirs, next of kin, executors and personal representatives.

II.

THE ACCIDENT AND THE LAWSUIT

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

Plaintiffs sued defendant and Slater.[ 3] Defendant raised the defenses of implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

III.

THE JURY TRIAL

The jury trial spanned five weeks.[ 4] The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered yes to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel were not making any changes to the special verdict form.

The following day, at the close of evidence and outside the jurors’ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.[ 5] The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: [Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and-release of liability and waiver was executed-existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated. (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could end up finding that the release was not valid and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as the release in evidence releases negligence. And the questions on the verdict form go[] to gross negligence, and-this doesn’t have to do with the release, but the increase of unreasonable risk. Defendant’s counsel remarked the dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form. Plaintiffs’ counsel concurred: Right. Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, [a]t the end of the day, it’s a simple exercise. That jury form…. [¶]… If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them-you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

THE SPECIAL VERDICT

As to defendant, the special verdict form included three liability questions, three damages questions, and three comparative fault/apportionment of liability questions. The liability questions read as follows:

3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

Yes X No __

4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

Yes __ No X

If you answered Yes’ to either question 3 or 4, then answer question 5. [¶] If you answered No’ to both questions 3 and 4, and also answered No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

If you answered Yes’ to both questions 1 and 2, and answered No’ to both questions 3 and 4, insert the number 0′ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

Yes X No __

Because the jury answered yes to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2, 131, 831, with Tuttle and defendant sharing equal responsibility.

Immediately after polling the jurors, the trial court asked plaintiffs’ counsel to prepare the judgment and submit it the next morning. The trial court then thanked and discharged the jury without objection from trial counsel. No one noted on the record that express assumption of the risk was a complete defense to the jury’s verdict.

V.

ENTRY OF A DEFENSE JUDGMENT

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1, 065, 915.50, plus costs and interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.[ 6]

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle. The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: [D]efendant has prevailed on the express assumption issue and negate[d] the defendant’s duty of care, an element of the plaintiff’s case.’

The trial court acknowledged the structure of the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

PLAINTIFFS’ POSTJUDGMENT MOTIONS

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint. (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence, [ 7] the special verdict was hopelessly contradictory because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ postjudgment motions. Plaintiffs timely appealed.

DISCUSSION

I.

THE RELEASE COVERED TUTTLE’S ACCIDENT.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so the scope of a release is determined by [its] express language. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

A.

OVERVIEW: ASSUMPTION OF THE RISK

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight)[ 8] and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing.[ 9] Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367 (Allan).) Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. (Allan, supra, 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra, 3 Cal.4th at p. 308.)

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. (Knight, supra, 3 Cal.4th at p. 314.) Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility. (Ibid.; see Allan, supra, 51 Cal.App.4th at p. 1367.)

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.’ (Hass, supra, 26 Cal.App.5th at p. 27.)

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ [Citation.]’ [Citation.] As we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ (Cohen, supra, 159 Cal.App.4th at p. 1485; see Allan, supra, 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777 (Santa Barbara).)

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

B.

ANALYSIS

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only concern is whether the release in this case negated the duty element of plaintiffs’ causes of action.’ (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra, 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed ALL RISKS associated with [skiing], known or unknown, inherent or otherwise. She also agreed not to sue defendant and to release it FROM ALL LIABILITY… BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE. No more was required.

Defendant’s use of the phrase, inherent or otherwise did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, [t]he term otherwise,’ when paired with an adjective or adverb to indicate its contrary’… is best understood to mean NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release bears many similarities to the release in Cohen, supra, 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently and unexpectedly provoke[d] a horse to bolt and run without warning (id. at p.1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement to assume responsibility for the risks identified herein and those risks not specifically identified.’ (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted the trial court apparently granted summary judgment on the theory that the risks not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding. (Cohen, supra, 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use the word negligence’ or any particular verbiage… [it] must inform the releasor that it applies to misconduct on the part of the releasee. (Id. at pp. 1488 1489.) The release in Cohen used the word negligence only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release also did not indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities. (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra, 159 Cal.App.4th at p. 1494-1495.)

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence. (Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4.)

The release in Zipusch, supra, 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra, 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra, 26 Cal.App.5that p. 18.)

Addressing the release, Hass held: By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the [plaintiffs’] wrongful death claim for ordinary negligence. [ 10] (Hass, supra, 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid release and no gross negligence by defendant, the issue of inherent risk was no longer relevant. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 353 [where the doctrine of express assumption of risk applies, implied assumption of the risk is no longer considered].)

II.

ENFORCEMENT OF THE RELEASE DOES NOT VIOLATE CALIFORNIA’S PUBLIC POLICY.

Plaintiffs next argue the release’s exculpatory language violates California’s public policy. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of aggravated negligence. Plaintiffs argue Santa Barbara, supra, 41 Cal.4th 747 left open the question of whether public policy precludes the contractual release of other forms of aggravated’ misconduct, in addition to gross negligence. (Some capitalization omitted.) The argument is raised for the first time on appeal; it has no merit.

In Santa Barbara, a parent signed an agreement releasing the defendants from liability for any negligent act’ related to her child’s participation in summer camp. (Santa Barbara, supra, 41 Cal.4th at p. 750.) The child drowned. (Ibid.) The trial court denied the defendants’ motion for summary judgment based on the release, and the appellate court denied defendants’ petition for writ of mandate challenging that ruling. (Id. at p. 753.) The sole issue before the Supreme Court was whether a release of liability relating to recreational activities generally is effective as to gross negligence. (Id. at p. 750.)

The defendants argued California law, specifically Civil Code section 1668, [ 11] impliedly allowed recreational activity releases to be enforced against a claim of gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 762-763.) At the time, no published California decision voided[] an agreement purporting to release liability for future gross negligence. (Id. at p. 758.) The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. (Id. at pp. 760-762.)

References in Santa Barbara to aggravated wrongs (a term used by Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 484) (Santa Barbara, supra, 41 Cal.4th at pp. 762, 765, 776) and aggravated misconduct (id. at pp. 760, 762, 777, fn. 54) do not suggest a new species of negligence that might affect a liability release for recreational activities. Rather, those phrases encompassed misconduct that included gross negligence and willful acts. (Id. at p. 754, fn. 4.) As the majority held, the distinction between ordinary and gross negligence’ reflects a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. (Id. at p. 776.) With a valid release, a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to [the] plaintiffs. (Santa Barbara, supra, 41 Cal.4th at p. 781.)

Here, no public policy considerations preclude the enforcement of defendant’s recreational activity release that exculpated it from liability for its own ordinary negligence. (Knight, supra, 3 Cal.4th at p. 309, fn. 4.)

III.

THE TRIAL COURT DID NOT ERR BY ENTERING JUDGMENT IN FAVOR OF DEFENDANT.

Plaintiffs argue the trial court should have entered judgment in their favor regardless of the jury’s finding concerning gross negligence because the jury made findings on damages and apportioned fault between Tuttle and defendant. They contend the responsibility to seek a JNOV or some other postjudgment remedy should have fallen to defendant, not plaintiffs. But once the trial court determined the special verdict was not inconsistent and Tuttle’s express release provided a complete defense as a matter of law, entry of a defense judgment was proper. Even if the trial court erred in entering a defense judgment without a formal motion for JNOV, any error was harmless.

A.

LEGAL PRINCIPLES GOVERNING SPECIAL VERDICTS

A special verdict must include conclusions of fact as established by the evidence… [so] that nothing shall remain to the Court but to draw from them conclusions of law. (Code Civ. Proc., § 624.) A special verdict is not a judgment. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332.) If a special verdict includes findings on inconsistent theories, the findings on the legal theory that does not control the outcome of the litigation may be disregarded as surplusage. (Baird v. Ocequeda (1937) 8 Cal.2d 700, 703.) Additionally, where no objection is made before the jury is discharged, it falls to the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’ (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457; see Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092.)

B.

THE TRIAL COURT’S RULING

As noted, the jury was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court recognized and fulfilled its duty to interpret the special verdict: After [this] court rejected several unilateral proposals, the parties stipulated to a special verdict form…. But they did so before the court construed the release in response to defendant’s nonsuit motion and before the parties stipulated Ms. Tuttle entered into the release. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. Question #4 asked whether defendant acted with gross negligence. [¶] The answer NO’ to either Question #3 or #4 exonerates defendant. Answering No’ to Question #3 would foreclose the only relevant exception to the primary assumption defense. Answering NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. [¶] But the form allowed the jurors to answer YES’ to one question and NO’ to [the] other one and continue to answer questions, including determining and allocating damages. (Italics and bold omitted.)

The trial court further explained: Here, the specific finding that defendant did not act with gross negligence controls over the general award of damages. The jury was properly instructed with the definition of gross negligence. The jury received percipient and expert testimony that, if credited, showed defendant did not act with gross negligence. The parties argued whether defendant [did] or did not act with gross negligence. The answer NO’ to Question #4 unambiguously shows the jury found defendant did not act with gross negligence. That resolved the only factual question on the express assumption issue in favor of defendant. [¶]… [¶] The award of damages is not a hopeless inconsistency so much as it is mere surplusage once the court honors the jury’s unambiguous finding that defendant acted without gross negligence and draws the legal conclusion-a conclusion that [the] jury was not asked to draw-that the release covers these claims and effects an express assumption of the risk.

The trial court also correctly concluded the jury’s findings on Question[] #3 and Question #4 [were not] irreconcilable. The concept of unreasonably increasing inherent risks is distinct from the concept of gross negligence. In a particular case, the same facts that show an unreasonable increase in the inherent risks may also show gross negligence. [Citation.] Overlap is possible, [but not] necessary. In this case, the jury found no such overlap. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. And that, after five weeks of trial, is what happened here.

C.

ANALYSIS

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 781.) There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment. Accordingly, Question No. 3 concerning whether defendant unreasonably increased the inherent risk should have been removed from the special verdict form.

Also, the special verdict form should have instructed the jury that if it found defendant was not grossly negligent, it should not answer the remaining questions. The jury’s compliance with the trial court’s instructions and consequent damages-related findings were surplusage, but did not create an inconsistency with its finding that defendant did not act with gross negligence. The trial court correctly entered judgment in favor of defendant based on the dispositive finding of no gross negligence. The trial court’s explanation of its ruling demonstrates the trial court’s application of the correct legal principles in doing so.

In their appellate opening brief, plaintiffs argue defendant forfeited any objection to the special verdict form because it (1) failed to object to the special verdict before the jury was discharged; (2) invited the erroneous instructions in the special verdict form because it had participated in drafting it; and (3) failed to bring a statutorily authorized post-trial motion challenging the special verdict form. Although the special verdict form should have been amended before deliberations, there is no issue of forfeiture or invited error on defendant’s part.

The parties jointly agreed on the wording of the special verdict form. Any fault in the drafting cannot be assigned to one side over the other, and all parties bear responsibility for the erroneous directions in the stipulated special verdict form. Nothing in the record suggests the special verdict form or the objection to entry of a plaintiffs’ judgment was the product of gamesmanship. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183.)

Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. As part of the discussion pertaining to the parties’ stipulation, however, both the trial court and defendant’s trial counsel questioned the adequacy of the special verdict form. But plaintiffs’ trial counsel maintained the special verdict form was fine as is and persuasively argued against making any changes or advising the jury of the stipulation. This meant the doctrine of implied secondary assumption of the risk was not relevant unless the jury found defendant acted with gross negligence.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; but the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law. Under these circumstances, it would have been a waste of resources to require defendant, or the trial court on its own initiative, to formally notice a motion for JNOV (Code Civ. Proc., § 629, subd. (a)).

Even if we found the procedure to have been erroneous, the error would have been procedural, not substantive; and, plaintiffs have not demonstrated the likelihood of a different outcome. (See Webb v. Special Electric, Co., Inc. (2016) 63 Cal.4th 167, 179 [because the defendant did not have a complete defense as a matter of law, the entry of JNOV was unjustified [on the merits]. In light of this conclusion, we need not reach plaintiffs’ claims of procedural error].) Defendant had a complete defense; there is no reasonable probability the trial court would have denied a formal JNOV motion.

Plaintiffs argue they relied on the state of the special verdict form in making the decision to stipulate to the validity of the release agreement. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Such an argument is without support in the law. It is also belied by the record. As already discussed, both defendant’s counsel and the trial court raised questions concerning the special verdict form once the parties stipulated to Tuttle’s execution of the release. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form.

IV.

PLAINTIFFS ARE NOT ENTITLED TO A NEW TRIAL.

Plaintiffs argued in their motion for new trial that the special verdict was hopelessly contradictory and, consequently, against the law. Plaintiffs also asserted there were errors in the special verdict form, they excepted to those errors, but then were penalized because the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley. Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. 431, [ 12] to which they agreed, misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence.

On appeal, plaintiffs ask this court to reverse the denial of their motion for a new trial. They fail to cite applicable authorities to support their arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Instead, they contend the trial court changed the rules of the game only after the game had already been played, leaving the parties and their counsel without the opportunity to satisfy those new rules, and robbing the jury of the ability to assess all viable liability options. Plaintiffs add they stipulated to Tuttle’s execution of the release in reliance on the wording of the then existing Special Verdict form, which… made clear that a finding of gross negligence was only one of two disjunctive liability paths, and was not necessary to impose liability against Heavenly. As a consequence, [plaintiffs]… were… induced into a stipulation concerning that issue in light of the wording of the existing Special Verdict form, an unfair sequence which the trial court itself acknowledged worked against [plaintiffs]. This characterization misstates the record.

First, the trial court made legal rulings throughout trial when called upon to do so. The trial court did not change any of its pronouncements of law after the trial concluded. The record shows the trial court gave the parties every opportunity to revisit the jury instructions and special verdict form before they were given to the jury.

Second, although the trial court described the sequence of events, it did not suggest the events were unfair or worked against plaintiffs. As discussed ante, when the trial court denied defendant’s renewed motion for nonsuit, it advised counsel the jury must decide whether Tuttle actually executed the release. Because neither side proposed jury instructions or questions on the special verdict form addressing the issue of contract formation, defendant’s counsel suggested they should revisit both the jury instructions and the special verdict form. Plaintiffs’ trial counsel immediately stipulated to Tuttle’s execution of the release and advised he would proceed with the verdict form as is. This statement calls into question plaintiffs’ claim they were induced into entering into the stipulation.

Third−and significantly−plaintiffs’ counsel did not discuss disjunctive liability paths in his closing arguments. Instead, plaintiffs’ counsel focused on the evidence and urged the jury to find gross negligence: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

The jury unanimously found defendant did not act with gross negligence. The jury’s function is to make ultimate findings of fact, and it is the trial court’s responsibility to apply the law to the relevant findings of fact. Nothing in the special verdict form misled the jury with regard to the factors it should consider in making any particular finding. We conclude the trial court correctly applied the law and entered judgment accordingly.

DISPOSITION

The judgment and post judgment orders are affirmed. Respondents shall recover costs on appeal.

WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.

———

Notes:

[*] Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[ 1] We refer to Dana Tuttle as Tuttle and to her spouse and sons collectively as plaintiffs. We refer to Heavenly Valley as defendant.

Plaintiffs erroneously identified Heavenly Valley in the complaint as the Vail Corporation. There is no dispute Heavenly Valley is the correct defendant in this case.

[ 2] Tuttle purchased the ski pass online. No actual signature was required; she signed the release by clicking the appropriate box on the electronic form.

[ 3] The jury exonerated Slater from liability. He is not a party to this appeal.

[ 4] The appellate record is lengthy. Given the limited issues before this court, however, we do not recite the trial evidence in detail.

[ 5] The trial court denied defendant’s first nonsuit motion two days earlier. At that time, the trial judge announced he would be prepared to find as a matter of law that colliding with a snowboarder or colliding with a tree is an inherent risk of skiing, but the jury would decide whether defendant unreasonably increased the inherent risk of the sport.

[ 6] Defendant also requested a statement of decision addressing the applicability of primary implied and express assumption of the risk doctrines; the trial court denied the request. The trial court’s denial of this request is not at issue in this appeal.

[ 7] Plaintiffs do not challenge the sufficiency of the evidence in this appeal.

[ 8] Knight, supra, 3 Cal.4th 296 was a plurality decision authored by Chief Justice George that all members of the court except Justice Kennard subsequently accepted. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107, citing Shin v. Ahn (2007) 42 Cal.4th 482, 491.)

[ 9] Whether a risk is inherent to a particular active sport presents a question of law for the court. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 23 (Hass).)

[ 10] So it is here. Paragraph 13 of Tuttle’s release also binds her assignees, subrogors, distributors, heirs, next of kin, executors and personal representatives.

A wrongful death action is not a derivative action. Nonetheless, although an individual involved in a dangerous activity cannot by signing a release extinguish his heirs’ wrongful death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk. (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 852; see Hass, supra, 26 Cal.App.5th at p. 25 [In other words, although a decedent cannot release or waive a subsequent wrongful death claim by the decedent’s heirs, that decedent’s express agreement to waive the defendant’s negligence and assume all risks’ acts as a complete defense to such a wrongful death action].)

[ 11] Civil Code section 1668 lists the types of contractual releases that are unenforceable as a matter of public policy (i.e., those exempting anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent). Gross negligence is not on the list.

[ 12] Plaintiffs do not challenge the modified version of CACI No. 431 in this court, either. The modified instruction read: If you find that Heavenly Valley unreasonably increased the inherent risks of snow skiing, or that Heavenly Valley was grossly negligent, and also find that Heavenly Valley’s conduct was a substantial factor in causing Dana Tuttle’s harm, then Heavenly Valley is responsible for the harm. Heavenly Valley cannot avoid responsibility just because some other person, condition, or event, including but not limited to Dana Tuttle’s own negligence or the acts of Anthony Slater were also a substantial factor in causing Dana Tuttle’s harm.

———


Release stops lawsuit by plaintiff thrown from ATV in Pennsylvania.

Release signed 8 months earlier saved defendant.

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

State: Pennsylvania; United States District Court for the Middle District of Pennsylvania

Plaintiff: Patrice Scott-Moncrieff

Defendant: The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

Year old release still valid to stop claims. Plaintiff rented ATV and signed a release. Eight months later she rented an ATV from the same defendant again but did not sign another release. The original release was enough to stop her lawsuit.

Facts

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.

The release the plaintiff signed had several places to initial the release which she did.

The defendant filed a motion for summary judgment and this is the response to that motion.

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

The release in this case also had an assumption of the risk clause, which the court found as valid proof the plaintiff assumed of the risk, “…within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities.”

The plaintiff argued the release was void because:

Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.

The court then reviewed the requirements for a release, an exculpatory clause in a contract in Pennsylvania.

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion.

A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”

A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals

Under Pennsylvania law, the release did not contravene public policy because it did not affect a matter of interest to the public or the state. Recreation is not a public interest in most states. Also, the release was between private parties and only affecting the rights to the parties to the agreement.

Pennsylvania has a three-prong test to determine if a release violates public policy, the Topp Copy standard.

The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he 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.”

The court went on to define a contract of adhesion is a contract where the signor has no other choice but to sign the agreement.

“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 Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so.

The court then went on to determine if the release was enforceable under Pennsylvania law, meaning that was the language sufficient to give notice to the parties of what they were doing. The agreement must relieve a party for the liability of their own negligence. To determine if the release was enforceable the court must determine if:

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.

Here the court found the language was sufficient and the agreement was valid.

The plaintiff then argued that the release should not be held against her because she did not sign the release on the day she was injured. She found the defendant had a policy that all persons must sign the release each time they came to the defendant. This policy was discovered by questioning a maintenance man that had been terminated.

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all riders must sign a waiver every time they ride an ATV at their park” and Plaintiff did not sign a waiver when she visited the park in June 2014.

The court found the testimony of the maintenance man had no bearing on the case. He was not working for the defendant at the time of the accident, he was not involved in getting releases signed when he did work for the defendant and he did not represent nor was he acting on behalf of the defendant.

The release signed by the plaintiff on her first trip to the defendant’s business was still valid. The release stated it was to remain binding “for all time thereafter.”

The court did not seem to care that even if the policy had been in place it did not matter because the plaintiff signed a release that was still in force.

Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

The court found the release executive by the plaintiff on her first trip was valid to prevent the lawsuit when she was injured on her second trip.

Then the plaintiff argued she was rushed and unable to read the first release she signed. The court quickly shot that argument down.

One who is about to sign a contract has a duty to read that contract. In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.”

Finally, the plaintiff argued the release not “properly conspicuous.” This was based on language a Pennsylvania court used to void a “release” on the back of a lift ticket because it was not conspicuous. Since this release was found within a contract, signed by the plaintiff that argument also failed.

Even if those conspicuity requirements applied, however the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph.

The release was upheld and the case was dismissed.

So Now What?

This seems like the same old person gets hurt recreating and tries stupid ways to get out of the consequences of signing a release. And to a major extent it is. However, there are a few interesting issues.

Courts are less likely to enforce a release for activities involving motors, unless NASCAR is big in your state. Add an engine to recreation and some courts think differently.

The second is the use of a release signed by the plaintiff prior to the date of her injury. Your release should always be written so there is no date for the agreement to terminate. Having the person sign a release each time they use your facilities is good. Handing the court a dozen releases signed on different dates proves the plaintiff had plenty of time to read and understand the release and assumed the risk of the activity.

But making sure your release is valid for more than that date and time is critical. First a release good for a specific time frame may be out of date when it is needed to stop a lawsuit in court. Second, you never know when someone will slip through the system and not sign the release and get hurt. Finally, you could lose the release you need. Granted there are ways to get lost documents admitted into court, however, it is much easier to present the court with a signed release that covers the incident no matter when the release was signed or the incident occurred.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936; 2018 WL 4110742

 

Scott-Moncrieff v. Lost Trails, LLC

 

, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Counsel:  [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2]  those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3]  party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4]  did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5]  (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:


2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6]  OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7]  any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8]  County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is “material” only [*9]  if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10]  such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11]  law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] 
Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13]  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.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “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.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14]  facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

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.

Topp Copy, 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15]  riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.


Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16]  of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17]  at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18]  first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); 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…. 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.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19]  this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20]  conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21]  the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22]  the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23]  Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

End of Document


Get check boxes and initials out of your release!

If the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

State: Pennsylvania: United States District Court for the Middle District of Pennsylvania

Plaintiff: Patrice Scott-Moncrieff

Defendant: The Lost Trails, LLC, et al

Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.

Facts

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.

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

The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.

The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he 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.” “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.”

If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.

Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:

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.

If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.

Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.

In this case, the court found the release passed all of the tests.

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety

One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)

The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.

…(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…. 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.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.

The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.

The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.

The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.

So Now What?

But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.

If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.

Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym, check box, checkbox, initials, The Lost Trails, The Lost Trails LLC, ATV, All Terrain Vehicle, Release, Public Policy


Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Core Terms

exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym

Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:


2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] 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.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “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.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

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.

Topp Copy, 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.


Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16] of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); 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…. 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.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge


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*

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

* Entered under Alaska Appellate Rule 214.

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

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

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

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)).

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

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.

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

4 AS 09.65.290(c).

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

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

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

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.

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

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

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

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.

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

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.

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

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

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

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.

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

13 Id. at 348.14 Id. at 349.15 Id.

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

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.

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

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)).

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

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

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

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

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

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.

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

20 Id. at 348.

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

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.”

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

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

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

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.”

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

23 Id. at 348.

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

“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

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

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).

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

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.

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

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

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

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

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

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.

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

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

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

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.

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

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.

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

33 Id.

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

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.

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

34 Id. at 352.

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

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

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

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.

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

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.

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

38 Id. at 963-64.

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

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.

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

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.

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

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.

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

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).

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

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.

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

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.


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

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

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

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

Plaintiff: Eden Gonzalez Hass et al

Defendant: Rhodyco Productions

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

Defendant Defenses: Release and Primary Assumption of the Risk

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

Year: 2018

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

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

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


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

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

Hass v. RhodyCo Productions

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

August 13, 2018, Opinion Filed

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

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

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

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

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

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

Opinion by: Reardon, J.

Opinion

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

I. FACTUAL AND PROCEDURAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

II. DISCUSSION

A. Standard of Review

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

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

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

B. Express Waiver

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

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

1. Waiver of Wrongful Death Claim

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

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

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

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

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

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

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

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

2. Public Policy

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

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

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

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

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

3. Gross Negligence

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

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

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

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

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

C. Primary Assumption of the Risk

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

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

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

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

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

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

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

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

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

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

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

III. DISPOSITION

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

REARDON, J.

We concur:

STREETER, Acting P. J.

SMITH, J.*


Holbrook v. Mccracken, 2004-Ohio-3291; 2004 Ohio App. LEXIS 2932

Holbrook v. Mccracken, 2004-Ohio-3291; 2004 Ohio App. LEXIS 2932

Matthew Holbrook, Plaintiff-appellant vs. Erin Mccracken, Defendant-appellee

NO. 83764

COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY

2004-Ohio-3291; 2004 Ohio App. LEXIS 2932

June 24, 2004, Date of Announcement of Decision

PRIOR HISTORY: [**1] CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Court of Common Pleas. Case No. CV-466188.

DISPOSITION: AFFIRMED.

COUNSEL: For plaintiff-appellant: JACK G. FYNES, NATHAN A. HALL, Attorneys at Law, SHUMAKER, LOOP & KENDRICK, LLP, Toledo, Ohio.

For defendant-appellee: JAMES M. JOHNSON, Attorney at Law, KOETH, RICE & LEO CO., L.P.A., Cleveland, Ohio.

JUDGES: KENNETH A. ROCCO, JUDGE. JAMES J. SWEENEY, P.J. and DIANE KARPINSKI, J. CONCUR.

OPINION BY: KENNETH A. ROCCO

OPINION

ACCELERATED DOCKET

JOURNAL ENTRY and OPINION

KENNETH A. ROCCO, J.

[*P1] This cause came to be heard on the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow the appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Ass’n (1983), 11 Ohio App. 3d 158, 11 Ohio B. 240, 463 N.E.2d 655.

[*P2] Plaintiff-appellant Matthew Holbrook appeals from the trial court order that granted summary judgment to defendant-appellee Erin McCracken, thus terminating appellant’s personal injury action.

[*P3] Appellant was injured when he fell from an indoor rock wall he had climbed for recreation. At the time, appellee was acting as his “belayer, [**2] ” i.e., as appellant descended from his successful climb, appellee reversed the process of taking up slack and instead let out rope for him from the top of the wall through a harness system attached to her body. Appellee stated she thought she “wasn’t fast enough” at locking the smooth “new” rope before too much of it slipped through the device on her harness and slackened appellant’s line.

[*P4] In his sole assignment of error, appellant argues the trial court improperly determined the doctrine of primary assumption of the risk precluded appellee’s liability on appellant’s claim. This court disagrees.

[*P5] [HN1] The Ohio Supreme Court recently reaffirmed the applicability of that doctrine to recreational activities in Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116. In order to gain the thrill associated with rock climbing, the appellant voluntarily assumed the primary and “inherent risk” of the activity, viz., falling. Blankenship v. CRT Tree, 2002 Ohio 5354.

[*P6] Therefore, despite appellant’s expert’s opinion that appellee was “reckless” in permitting the rope to slip through her hands, [HN2] the risk of falling [**3] inherent to the activity of rock climbing can be “reduced***[but] cannot be eliminated.” Vorum v. Joy Outdoor Education Center, (Dec. 12, 1998), 1998 Ohio App. LEXIS 6139, Warren App. No. CA98-06-072. This is especially true when the injury results from simple human error. Gentry v. Craycraft, supra, P 14.

[*P7] Since there was no evidence that appellee acted either intentionally or recklessly when the rope she held slipped before the harness device could lock it in place, the trial court correctly concluded she was entitled to summary judgment on appellant’s claim.

[*P8] Accordingly, appellant’s assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.KENNETH A. ROCCO JUDGE

JAMES J. SWEENEY, P.J. and

DIANE KARPINSKI, J. CONCUR

N.B. This entry is [**4] an announcement of the court’s decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court’s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court’s announcement of decision by the clerk per App.R. 22(E). See, also, S. Ct. Prac.R. II, Section 2(A)(1).


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

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

 

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


No matter who created the activity or the risk on Town’s land, using the risk was an outdoor recreation activity and protected by the New Hampshire Recreational Use Statute.

Besides if you stand in front of a rope swinging when someone is using it attempting to slap the swinger’s feet as he goes by, and you get flattened by the swinger you should not be able to recover. 

Kurowski v. Town of Chester, 2017 N.H. LEXIS 174

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Jay Kurowski F/N/F Christopher Kurowski

Defendant: Town of Chester

Plaintiff Claims: acted negligently and willfully or intentionally by failing to remove the rope swing or post warning signs.

Defendant Defenses: New Hampshire Recreational Use Statute 

Holding: For the Defendant Town 

Year: 2017 

Summary 

The Town had a park with a pond. Someone had put up a rope swing that allowed you to swing into the pond. The town knew about the rope swing and knew that it was possibly hazardous. However, the town never removed the rope swing or posted signs about the hazards it presented. 

The minor plaintiff was standing in front of someone using the rope swing attempting to hit the person’s feet when he was clobbered by the person on the swing suffering injuries. 

The father of the plaintiff sued. The trial court and the appellate court dismissed the case because the New Hampshire Recreational Use Statute provided immunity to the Town for outdoor recreational activities such as this one.

Facts 

The defendant city had a park with a pond. Someone put up a rope swing to use to swing into the pond. The city did not create the rope swing. Several people complained to the city about the rope swing and asked for it to be taken down or signs put up warning against its use.

The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, and is open to the public free of charge. Since approximately 2012, a rope swing has been attached to a tree overhanging the pond. Neither the plaintiff nor the Town constructed or maintained the swing. People use the rope swing to fling themselves over and into the pond.

The plaintiff, a minor, was at the rope swing. Another person was using the swing to enter the water. The plaintiff was attempting to hit the person’s feet. The person on the swing and the plaintiff collided injuring the plaintiff.

On August 20, 2015, Christopher was at the pond, standing in the path of a person using the swing. While Christopher was attempting to touch the feet of the person swinging on the rope, the two collided, and Christopher was seriously injured.

The father of the minor filed this lawsuit. The city filed a motion for summary judgment asking the compliant be dismissed because the city as the landowner was protected by the New Hampshire Recreational Use Statute

The trial court agreed and dismissed the case. The plaintiff appealed. 

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

The plaintiff first argued that using a rope swing to swing into a pond was not an outdoor recreation activity as defined under the New Hampshire Recreational Use Statute. The court quickly shot this down because the statute did not list everything that was to be protected by the statute it only listed a few things and started that list with the language “including, but not limited to….

The court had found other decisions it had made where it interpreted outdoor recreation activities as covered under the statute even though they were not identified in the statute. 

By its plain terms, the statute’s list of outdoor recreational activities is not exhaustive. Indeed, we have previously applied the principle of ejusdem generis to this provision and concluded that an activity not specifically enumerated — but similar in nature to the activities listed in the statute — may constitute an “outdoor recreational activity.” The principle of ejusdem generis provides that, when specific words in a statute follow general ones, the general words are construed to embrace only objects similar in nature to those enumerated by the specific words.

Looking at the statute and the activity the court found the activity was a water sport and thus covered under the statute. 

We hold that Christopher was actively engaged in an outdoor recreational pursuit sufficiently similar in nature to the enumerated activity of “water sports” to constitute an “outdoor recreational activity” under RSA 212:34, I(c). 

The next argument made by the plaintiff was because the town did not supply the swing, it was not covered under the New Hampshire Recreational Use Statute. The court quickly shot this down finding it does not matter what was used in an outdoor recreational activity or who supplied it.

However, the identity of the person or entity providing the equipment or structure used in an outdoor recreational activity is immaterial. See id. at 56 (finding immaterial the fact that playground equipment used in outdoor activity was provided by landowner rather than user). Indeed, many of the enumerated outdoor recreational activities, for example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA 212:34, I(c),….

The plaintiff next argued the activity was not an outdoor recreational activity because the landowner did not authorize the activity and because the activity was hazardous. The court seemed a little irked when it shot this argument down.

In fact, the statute specifically contemplates that immunity will apply even if the activity at issue involves a known hazardous condition. See RSA 212:34, II (“A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises … . (emphasis added)).

The next argument made by the plaintiff centered around whether or not the actions of the town willful when it failed to post signs about hazards of the activity. The plaintiff argued one version of the definition of the term willful, and the town argued a second. The court found that under either definition, the town was still immune under the statute. Additionally, the court found the actions of the
town were not willful because the plaintiff could not establish the town knew or should have known that an injury would probably result from the activity. 

An allegation that a landowner knew about a particular hazard and did nothing is insufficient to establish that the landowner knew or should have known that injury would probably result from that hazard. At most, such allegations sound in negligence. Therefore, even assuming that the Spires definition applies, we conclude that the plaintiff’s allegations are insufficient as a matter of law to establish that the Town acted “willfully.”

The plaintiff then argued the acts of the town were intentional. That part of the case was dismissed by the trial court because the court found the plaintiff had not alleged enough facts to prove a case of intentional acts on the part of the town. The plaintiff’s argument was:

The plaintiff argues that the Town’s conduct constituted an intentional act for the same reasons he asserts the Town’s conduct was willful — because the Town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs. 

The court did not agree. There was no proof or pleading that the town had actual or constructive knowledge that its conduct, in failing to post signs or take down the swing, was conduct that was a substantially certain to result in an injury.

At most, the plaintiff’s allegations — that the Town was aware of a hazardous condition or activity and failed to act — sound in negligence. (concluding that allegations that defendant disregarded a substantial risk and failed to act sound in negligence). Accordingly, we hold that the trial court did not err when it found that the plaintiff alleged
insufficient facts to show that the Town’s conduct was willful or intentional.

The decision of the trial court was upheld, and the complaint dismissed.

So Now What? 

This case shows two simple truths for the outdoor recreation industry today. The first, plaintiffs are going to greater lengths to create arguments to litigate over outdoor recreation injuries. The work the plaintiff put in, in order to redefine each word of the statute in a way that did not protect the Town was
substantial and lengthy. 

The second is the statutes have to be written in a way that broadens the protections the legislature intends to give the courts the leeway to dismiss frivolous claims like this. Frivolous because I believe assumption of the risk would be the next defense.

If you stand in front of someone who is holding on to a rope swinging in your direction, and you do so willingly, you assume the risk of getting flattened.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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

clip_image002 clip_image004 clip_image006 clip_image008 clip_image010

 If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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, #RecreationLaw,
#OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, swing, “outdoor, recreational
activity”, landowner”, rope, discovery, hazard, immunity, willful, intentional
act, pond, recreational use, constructive knowledge, enumerated, warning, water
sports, hazardous conditions, “willfully, quotation, postpone, probable”, warn,
dock, matter of law, person using, dangerous condition, shallow water,
recreational, “willful”, guard, Recreational Use, Recreational Use Statute, Rope
Swing,

 

 

 


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

Spectators are always the biggest risk of many outdoor recreational activities. Even if they are behind fences or lines, the creep closer to the event and if a competitor leaves the track or run, it is the event host who might pay for the damages to the spectators.

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Andrea Ochall et al.,

Defendant: William M. McNamer et al.,

Plaintiff Claims: negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium

Defendant Defenses: Assumption of the Risk

Holding: for the Defendants

Year: 2016

This court was almost tedious in its review of the facts and the application of the law to the facts in this case. This case is another one outside of the normal scope of this review; however, it covers assumption of the risk in infinite detail under Ohio’s law and deals with claims of spectators. Spectators are present at most sporting events and in some cases assume the risk, like the baseball rule at baseball games and sometimes do not.

The defendant land owner’s kids built  a go-kart track. The decision involves a go-kart track in a homeowner’s back yard. The track was just a simple asphalt track. There were no barriers, no bleachers, nothing else except one bench. The land owner worked for a paving company so the track was paved. There was also a paved driveway from the barn where the go-karts were kept to the track. The track was built for no other purpose than for the use and enjoyment of the landowners and people they might invite over.

The track owner’s next-door neighbors used the track a lot and owned a go-kart that was stored with the landowner’s go-karts. However, the neighbors never used the track without asking permission before hand.

One day, the neighbors wanted to invite their friends to the track. Those friends became the plaintiffs.

Everyone took turns driving go-karts around the track, including the plaintiff. When not driving the go-karts, most of the people seemed to congregate on the asphalt drive between the track and the barn. The plaintiff argued this was a safe environment and the place to stand. There were no barriers between this or any place around the track and the track.

Various times during the day, different people drove off the track. After going off the track people simply drove back on the track and kept racing.

When not racing, the plaintiff was taking pictures. Taking pictures obscured the plaintiff’s view of what was going on sometimes.

During one race, the headband of one of the go-kart drivers slid down over her eyes. She grabbed the headband and through it off. While doing so she drove off the track striking the plaintiff.

The last picture the plaintiff took was the driver throwing her headband off.

The plaintiff’s sued the paving company the landowner worked for, as well as the landowner. The paving company was dismissed earlier on its motion and was not part of this discussion.

The plaintiff’s sued the landowner and the neighbors who invited them. The trial court dismissed the plaintiff’s claims based on various motions filed by the different defendants. The plaintiff appealed. The arguments presented in the various motions were boiled down to two and discussed without regard to the plaintiffs and all defendants even though they filed separate motions.

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

The appellate court first looked at assumption of the risk and whether it applied to this case. Assumption of the risk means the defendant owes the plaintiff no duty. Therefore, there is no negligence. Ohio recognizes three types of assumption of the risk: express, primary and secondary (implied).

Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” “Express assumption of the risk applies when parties expressly agree to release liability.” “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a known risk that acts as a defense to plaintiff’s action.”

Primary assumption of the risk is the defense that is applied to people who voluntarily engage in sports or recreational activities.

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

The argument for this is some sports or recreational activities cannot be played without risk. If the risk is removed from the sport, then the value in playing or the sport disappears. Another baseball example is the batter assumes the risk of being hit by a badly thrown pitch. If you remove that risk, the batter has nothing to swing at and there is no game of baseball.

By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.”

Ohio law applies the doctrine of primary assumption of the risk to participants and spectators alike [emphasize added].

Thus, courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of owners, operators, and sponsors of recreational activities. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. The doctrine also applies to spectators and participants alike.

Assumption of the risk when applied to a sport or recreational activity is not dependent upon the plaintiff’s knowledge and appreciation of the risks of the sport or activity. Normally to assume the risk a person must know and understand the risk as required in primary assumption of the risk. In sporting or recreational activities, knowledge of the risk is immaterial. Whether a participant assumes the risk is solely based on the risks of the sport, not what the participant knows.

Furthermore, when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” (Noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.”

Those risks that apply are the ones directly associated with the activity. Consequently, a court must proceed with caution when examining the activity and the risks because assumption of the risk is a complete bar because no negligence can be proved. Was the risk that injured the plaintiff a risk of the sport and if so, was that risk increased by the activity of the defendant. If the risks are part and parcel of the sport, then the defendant does not owe a duty to the plaintiff.

[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.”

The doctrine of applying primary assumption of the risk to sports and recreational activities was created to ensure the sport was played vigorously and freely without fear of reprisal.

The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”);…

That doctrine then defines primary assumption of the risk when applied to a sport as:

…where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’

The test is then applied with a three-part test.

Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists.

Risks that are “foreseeable, common, and customary risks of the activity” are therefore assumed by participants whether they knew of the risks or not. The Ohio Supreme Court further defined the definition to mean “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.’”

Looking at the risks of go-karting the court found that it was an inherent risk of the sport for a go-kart to leave the track. (Since go-karts had been leaving the track all day, this seems pretty implicit and also gives the plaintiff notice of the risk, although not required by the definition of primary assumption of the risk.)

Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object, which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons.

Primary assumption of the risk barred the claims of the plaintiffs.

The court then looked at whether the actions of the driver who left the track and struck the plaintiff where reckless which would defeat the defense of assumption of the risk. The court looked at the definition of recklessness under Ohio’s law.

An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.

That conduct must be measured against how the sport is played.

What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.”

Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.”

The plaintiff argued the defendants were reckless in failing to inform the plaintiff of the rules of the track. The court found there were no rules and there was no obligation to create them. The track was a backyard track built by the songs of the landowner for their enjoyment. There were no rules nor was there a requirement for the landowner to create rules for the use of the track.

Additionally, there is no duty to reduce or eliminate the risks of a recreational activity. The only duty is to not increase the risk of the activity. Consequently, the land owners did not owe a duty to create rules for the track or to inform the spectators of any rules if they were created.

Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity

The son of the landowner who built the track stated he had a ruled that spectators should stay in the barn. However, he had never enforced the rule. The court found that rule of no real value and no duty to create, enforce it or tell the plaintiff about it.

Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

There was a bench located near the track. The defendant land owner’s son argued it was for racers to sit on between races to rest. The plaintiff argued it was there for spectators and built to entice the plaintiff to stand near it where she was injured. However, the court did not agree with this argument either.

However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.”

The plaintiff’s then argued it was reckless of the defendants to conceal the dangers of the track by failing to warn them of the risks or educating them of the dangers. However, they could not tie these arguments, failing to warn, to the injury received by the plaintiff. The court found even if they had been informed of the risks, it would not have changed anything; the plaintiff would still have probably been injured.

Another recklessness claim was directed at the adults in charge of the minor driver who injured the plaintiff when she drove off the track. However, again, they could not relate those claims to the cause of the accident.

Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident.

Finally, the plaintiff claimed the minor driver was reckless in how she drove.

Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall.

This argument failed because reckless conduct is a conscious act. There was no conscious decision to drive off the track. The decision was to remove the headband when it was blinding her.

…reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man

The court could not find in the plaintiff’s recklessness arguments, a proximate cause or a relationship in the arguments that might have or would have changed the way things happened.

However, every tragic accident does not result in tort liability. Because Mrs. Ochall primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

The appellate court agreed with the trial court, and the case was dismissed.

So Now What?

The first issue is assumption of the risk applies to spectators. Spectators have always been the unknown possible lawsuit at events. Spectators usually pay to see the event so recreational use statutes provide no protection. They do not sign releases because they are not participating. However, based on this definition of assumption of the risk and the idea that a spectator should assume the risk because they watch the sport, a spectator is prevented from sung when injured under Ohio Law.

The second issue is the clear definitions of assumption of the risk defined in this.

On a side note, the plaintiff hired an expert witness who opined that the landowner should have built a small elevated wooden platform for spectators to stand on next to the track.

Hawn stated that a “reasonable solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.”

The expert also opined that the spectator’s area should have been relocated to the inside of the track and elevated. (So you have a group of people above the track level all turning around together to watch the race……)

Can you see what would happen at backyard playgrounds, sandboxes and every other play or recreational device in backyards? Sand boxes would have to come with sneeze guards you see on salad bars so sand could not accidentally be thrown in a grandparent’s face.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2017 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: http://www.recreation-law.com

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

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, track, go-kart, spectator, driving, reckless, driver’s, guest, eliminated, summary judgment, inherent risks, foreseeable, go-karting, paved, finish line, recreational activity, sport, assignments of error, safe, curve, speed, kart, customary, host, risks inherent, assumption of risk, intentionally, inform, risk of injury, headband, genuine, Express Assumption of the Risk, Implied Assumption of the Risk, Secondary Assumption of the Risk, Primary Assumption of the Risk,

 


Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Andrea Ochall et al., Plaintiffs-Appellants/Cross-Appellees, v. William M. McNamer et al., Defendants-Appellees, Mark McMillen et al., Defendants-Appellees/Cross-Appellants.

No. 15AP-772

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

December 29, 2016, Rendered

PRIOR HISTORY:  [**1] APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 14CV-5498).

DISPOSITION: Judgment affirmed.

COUNSEL: On brief: Kitrick, Lewis & Harris, Co. LPA, Mark Lewis, Mark Kitrick, and Elizabeth Mote, for appellants. Argued: Mark Lewis.

On brief: The Carr Law Office, LLC, Adam E. Carr, and Eric K. Grinnell, for appellees William M. and Elizabeth McNamer. Argued: Adam E. Carr.

On brief: Lane Alton, Joseph A. Gerling, and Monica L. Waller, for appellees/cross-appellants Sharon and Mark McMillen. Argued: Monica L. Waller.

On brief: Hollern & Associates, and Edwin J. Hollern, for appellees James Porter and Jane Doe # 1. Argued: Edwin J. Hollern.

JUDGES: KLATT, J. SADLER, J., concurs. DORRIAN, P.J., concurs in and part dissents in part.

OPINION BY: KLATT

OPINION

(REGULAR CALENDAR)

DECISION

KLATT, J.

[*P1]  Plaintiffs-appellants, Andrea Ochall, her husband Robert Ochall, and their two minor children, appeal from a judgment of the Franklin County Court of Common Pleas, granting the motions for summary judgment of defendants-appellees, Sharon and Mark McMillen, James Porter and his minor daughter, Jane Doe, and William and Elizabeth McNamer (“Liz”). For the reasons which follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

[*P2]  On May 23, 2014, appellants [**2]  filed a complaint against the McNamers, the McMillens, Porter, Doe, McMillen Paving and Sealing, Inc. (“MP&S”), and McMillen Paving, Inc. The complaint asserted claims for negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium. The events giving rise to the complaint occurred on September 20, 2013, when Mrs. Ochall was seriously injured while watching a go-kart race on the McMillens’ property.

[*P3]  On the day of the incident, the McNamers had invited the Ochalls to their home in Hilliard, Ohio, for the purpose of using the go-kart track located on the McMillens’ property. The McNamers and the McMillens are next-door neighbors and very good friends. Liz McNamer and Robert Ochall are co-workers, and Liz McNamer had previously invited the Ochalls over to use the McMillens go-kart track in 2011. The Ochall family, both the adults and their two children, drove go-karts on the McMillens’ track during their visit in 2011. The Ochalls, however, had never met the McMillens before filing the [**3]  present lawsuit.

[*P4]  The McMillens’ son, Brian McMillen, with assistance from his younger brother Scott, constructed the go-kart track in the McMillens’ backyard between 1994-1995, when Brian was between the ages of 18 and 19-years-old. The McMillens own and operate a paving and sealing company, MP&S. Brian is now the vice president of MP&S, but was not when he originally constructed the track.

[*P5]  Brian and his brother built the track in their spare time, and used some company equipment to build it. The McMillens routinely used company equipment on their home projects. Brian explained that the track “basically is a twisted up driveway.” (Jan. 5, 2015 Brian McMillen Dep. at 62.) The McMillens have never charged anyone money to use the track and they do not operate the track commercially, it is something they simply use “to [their] liking.” Id. at 88.

[*P6]  Although the McNamers and the McMillens are close frends, the McNamers would always ask the McMillens for permission before bringing guests over to use the track. Thus, prior to the Ochalls’ 2013 visit, Liz McNamer asked the McMillens if they could bring the Ochalls over to use the track. The McMillens said yes, and Mark McMillen opened the McMillens’ [**4]  barn and prepared the go-karts for the group’s use.

[*P7]  The McMillens own five go-karts and the McNamers own one go-kart, but the go-karts are all the same make and model. Brian McMillen purchased all the go-karts from the same vendor shortly after he constructed the track, and the McNamers paid the McMillens directly for their one go-kart. Brian explained that he selected these specific go-karts because he “didn’t want to go so fast out there” so that people would “need helmets.” Id. at 109. Brian noted that the go-karts have “a bumper, * * * a full harness and had a roll cage,” and could reach a maximum speed of 28 miles per hour. Id. Brian also noted that he could not “recall whether or not we actually got a manual for the karts,” noting that he did not “remember even seeing a manual.” Id. at 115. The go-karts all have stickers on the back which advise the drivers that there is no bumping.

[*P8]  The McMillens store their go-karts in their barn, and there is a paved driveway which connects the barn to the track. The driveway connects with the track at the track’s start/finish line. Porter explained that people would generally congregate on the paved area next to the start/finish line in order “to trade positions [**5]  with the drivers or to watch people driving by.” (Dec. 30, 2014 James J. Porter Dep. at 41.) Liz McNamer stated that she “always stood” on the paved area near the start/finish line when she was at the track. (Feb. 10, 2015 Elizabeth G. McNamer Dep. at 56-57.) Mrs. Ochall stated that, during her visit in 2011, she was “instructed to stand in that — that particular area” by Liz McNamer. (Dec. 4, 2014 Andrea L. Ochall Dep. at 29.) No one told Mrs. Ochall where to stand during the 2013 visit. Id. at 135-36.

[*P9]  Brian McMillen testified that he designed the track “not to have any spectators.” (B. McMillen Dep. at 168.) Brian explained that, when he took “people out there, that’s part of my deal: Stay up in the barn until you come up and get in a kart.” Id. at 175. He also noted that anyone at the track had to “be aware. You’ve got cars going around the track. You have to be aware that that’s an issue.” Id. Mark McMillen had placed a bench at the back edge of that paved area next to the start/finish line. Brian explained that the bench was “by no means a bleacher,” as it was there simply for drivers to rest on between and after races. Id. at 170-71.

[*P10]  There are no barriers around the McMillens’ go-kart track, only painted edge lines. [**6]  Brian McMillen explained that he purposely did not construct barriers because barriers “would just be something for a kart to hit,” and would “give a much greater probability of making a car go airborn and possible flipping.” Id. at 168, 232. Accordingly, when driving on the McMillens’ go-kart track, “there are times you go off the track on a turn or you veer off for some reason or another. * * * And that happens regularly.” (J. Porter Dep. at 38.) Liz McNamer noted that she “went off into the grass” the first time she drove on the track. (L. McNamer Dep. at 40, 42.) She explained that it was “safe” for a driver to “go off the track and come back on.” Id. at 108-09. Porter noted that he had seen go-karts go off the track on the “big turns, * * * on the little turns, * * * on the straightaways,” and specifically stated that he had seen go-karts go off the track “coming out that final turn into the start/stop” area. (J. Porter Dep. at 38-39; 45-46.)

[*P11]  On the day of the incident, the Ochalls arrived with their two minor children, and two of their children’s friends. The McNamers’ son-in-law, Porter, was also present with his daughter, and the McNamers’ granddaughter, Doe. Doe was 11 years old; the Ochall children [**7]  and their friends were all 13 years old. The group met at the McNamers’ house, and walked through the adjoining backyards to the McMillens’ go-kart track. The McMillens were not present at the track; Sharon McMillen was at the grocery store and Mark McMillen was inside his home watching a football game.

[*P12]  Liz McNamer gave the group instructions regarding how to operate the go-karts, telling them, “the gas was on one side, the brake was on the other, the steering wheel.” (L. McNamer Dep. at 103.) Liz McNamer observed the children as they drove, noting that “[t]hey seemed to be doing pretty well. They seemed like they were able to manage going around the track.” Id. at 106. Liz McNamer noted that she watched the children driving to make sure that no one was “at risk,” and noted that she “didn’t see that.” Id. at 117.

[*P13]  There were more people than go-karts during the 2013 event, so both the adults and the children rotated using the go-karts throughout the day. As was typical at the McMillens’ track, multiple drivers drove off the track that day. Doe’s go-kart came all the way off the track and went into the grass, and Porter’s go-kart came partially off the track. One of the Ochall children drove off the track, “[a]ll [**8]  four wheels were off the track,” and Porter “had to push him out.” (J. Porter Dep. at 93, 95-96.) Liz McNamer stated that she “observed that day each child went off the track at some capacity.” (L. McNamer Dep. at 109.) Liz McNamer testified that, when Doe’s go-kart left the track earlier in the day, she spoke to her granddaughter and “cautioned her and advised her just to be careful. The ground was pretty saturated. * * * There was water standing, so I just wanted her to be aware and, you know, just cautioned her.” (L. McNamer Dep. at 129.)

[*P14]  Mrs. Ochall was aware that there were “no barriers, there’s no safety barriers” around the track. (A. Ochall Dep. at 137.) Mrs. Ochall also witnessed go-karts driving off the track on the day of the incident, and admitted that she knew “that [a go-kart] could come off the track.” Id. at 139. Indeed, two photographs Mrs. Ochall took that day depict go-karts which had driven partially and completely off the track. (See A. Ochall Dep; Defs.’ Exs. 3 and 4.) However, Mrs. Ochall believed that the paved area next to the start/finish line was “a safe environment. That is a safe zone.” (A. Ochall Dep. at 137.) No one ever told Mrs. Ochall that the paved area was [**9]  a safe zone. (See Dec. 4, 2014 Robert W. Ochall Dep. at 13; A. Ochall Dep. at 191.)

[*P15]  Mrs. Ochall drove a go-kart on the day of the incident. After driving, she stood around the track taking pictures. Mrs. Ochall’s camera had a telephoto lens, and there was a cup she had to put her eye up to in order to use the camera. Because she was taking pictures “one right after the other,” Mrs. Ochall admitted that she was “[n]ot always” able to see what was going on around her. Id. at 139-40. She admitted that her vision was “[p]robably” obstructed by her camera. Id. at 140.

[*P16]  After one to two hours at the track, the group decided they would hold one last race. Porter, Mr. and Mrs. Ochall, Mr. and Mrs. McNamer, and an Ochall child were all standing in the paved area adjoining the track near the start/finish line; the others participated in the race. During the second lap of the race, as Doe came into the turn which approached the start/finish area, “her hair band went over her eyes. She had grabbed it and thrown it off to get better vision. So as she grabbed it and thrown it off, * * * she went straight through” the paved area next to the track and struck Mrs. Ochall. (J. Porter Dep. at 117.) Mrs. Ochall was standing “10-12 feet to [**10]  the south of the painted edge line which delineated the marked boundary of the track surface” when the accident occurred. (Pls.’ Ex. C., Apr. 9, 2013 Choya R. Hawn Acc. Reconstruction Report at 8.) Porter noted that, the cars are “hard to steer with one hand,” so when Doe threw her headband “she kind of jerked as well,” which caused her to veer off the track. (J. Porter Dep. at 117.) Doe confirmed these events and told her father immediately after the incident that her “headband slipped over her eyes, and she threw it out and lost control.” Id. at 130.

[*P17]  Doe’s go-kart struck Mrs. Ochall directly and flung her into the air. When Mrs. Ochall landed, she suffered a serious spinal cord injury. The last photograph Mrs. Ochall took that day depicts Doe throwing her headband. (See A. Ochall Dep.; Defs.’ Ex. 5.) Prior to Mrs. Ochall’s injury, no one had ever been injured at the McMillens’ go-kart track. (L. McNamer Dep. at 44-45.)

[*P18]  Although each defendant filed separate motions for summary judgment, all defendants alleged that the doctrine of primary assumption of risk barred appellants’ negligence claims, and that there was no evidence of reckless or intentional misconduct. The McMillens further asserted [**11]  that, as they did not invite the Ochalls to their property, they could not be considered the social hosts of the Ochalls. The McNamers asserted that, as they were not the property owners, they could not be held liable for any condition on the McMillens property. MP&S and McMillen Paving, Inc. argued that McMillen Paving, Inc. was a shell corporation with no assets, and that MP&S did not design or construct the track.

[*P19]  Appellants filed a memorandum contra the defendants’ motions for summary judgment, asserting that “[n]othing occurred to alert [Mrs. Ochall] to any danger of go-karts driving into spectators in the seating area.” (Apr. 14, 2015 Pls.’ Memo. Contra at 8.) Appellants argued that primary assumption of the risk did not apply to the facts of this case, because the track was designed defectively and because all of the defendants had acted recklessly.

[*P20]  Appellants supported their memorandum contra with the report of their accident reconstruction expert, Choya Hawn. Hawn observed that, “[i]n the absence of any persons afoot the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) (Acc. Reconstruction Report at 13.) Hawn stated that a “reasonable [**12]  solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Id. at 16. Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.” Id. at 16, 18.

[*P21]  On May 6, 2015, the court issued a decision and entry denying the McMillens’ motion for summary judgment, in part, and granting the business entities’ motion for summary judgment. The court concluded that, as the McNamers had asked the McMillens if they could bring the Ochalls to the McMillens property, and the McMillens had granted the McNamers permission to do so, “an implied invitation between the McMillens and Plaintiffs occurred.” (May 6, 2015 Decision & Entry at 4.) As such, the court concluded that the Ochalls were the social guests of the McMillens. Regarding the entities, the court determined that McMillen Paving, Inc. had “never performed any business nor held assets, and never acted in the creation of the go-kart [**13]  track,” such that the company was an “inappropriate party to the suit.” Id. at 5. Regarding MP&S, the court concluded that the company “was not employed to create or maintain the go-kart track,” and that Brian McMillen was not acting in his capacity as an employee of the company when he constructed the track. Id.

[*P22]  On July 31, 2015, the trial court issued a decision and entry granting the McMillens’, the McNamers’, and Porter’s and Doe’s motions for summary judgment. The court observed that go-karting is a recreational activity, and concluded that, “[s]ince the risk of being injured by a go-kart leaving the track [was] a foreseeable risk of go-kart racing on the McMillen track,” the risk was “inherent to go-kart racing on a private, barrier-less backyard track.” (July 31, 2015 Decision & Entry at 7-8.) As such, the court concluded that primary assumption of the risk applied to bar appellants’ negligence claims, and that appellants could only recover if the defendants acted intentionally or recklessly to cause Mrs. Ochall’s injuries.

[*P23]  The “parties agree[d] that no one acted intentionally to injure Andrea Ochall on that day.” Id. at 8. Accordingly, the court addressed whether any of the defendants engaged in reckless [**14]  misconduct. Appellants argued that the defendants were reckless because they failed to enforce Brian McMillen’s no-spectator rule. The court observed that, while Brian McMillen had a no-spectator rule when he was at the track, Brian was not the property owner, and neither the McMillens nor Brian McMillen acknowledged Brian’s personal rule as a track rule. As such, the court concluded that “not allowing adult spectators at or near the track for races [was] not a rule, regulation, custom, or common practice of the track or races conducted at the McMillen track.” Id. at 11. The court also addressed appellants’ argument that the defendants were reckless because they had not read or implemented safety guidelines from the go-kart manufacturer’s or owner’s manuals. The court concluded that no defendant had a duty to inform appellants about those safety guidelines.

[*P24]  Regarding the McMillens, the court noted that, as the property owners, the McMillens had no duty to improve their track, as they only had a duty to “exercise ordinary care to prepare the property for social guests.” Id. at 12. Accordingly, the McMillens did not have “a duty to instruct guests on how to go-kart race or to implement any rules other [**15]  than those which the family uses on their land.” Id. at 14. The court observed that the McMillens merely allowed their neighbors and their neighbor’s guests to use their go-kart track. As such, the court did not find any evidence of reckless conduct by the McMillens.

[*P25]  Regarding the McNamers, the court noted that the McNamers similarly “did not have a duty to instruct guests on how to drive a go-kart.” Id. at 16. Regarding the McNamers supervision of Doe, the court noted that Liz McNamer told her granddaughter once to slow down. The court observed that “[a] single admonishment by a grandparent in the presence of the child’s parent” was “not sufficient evidence of recklessness.” Id. at 19. As there was no evidence indicating that the McNamers told appellants “they ‘had to’ stand on the adjacent asphalt area,” and as Liz McNamer also stood on the adjacent asphalt area, the court could not find that the “McNamer’s action of standing on the adjacent area rose to the level of reckless required by the theory of primary assumption of the risk.” Id. at 20.

[*P26]  Regarding Doe, the court concluded that Doe was not reckless, “because removing a hand from the steering wheel to clear one’s vision is the lesser of two evils. * * * [Doe] [**16]  did not intentionally drive into the spectator area, but was unable to correct her kart’s path in time to not strike Plaintiff.” Id. at 21. Regarding appellants claim that Porter was reckless by not removing Doe from the track earlier in the day, the court concluded that, as there was no evidence demonstrating that Doe was driving recklessly throughout the day, there was no reason why Porter should have removed Doe from the track.

[*P27]  Accordingly, the court concluded that primary assumption of the risk applied to the case, and that there was no evidence of reckless or intentional misconduct. As such, the court found the defendants entitled to summary judgment as a matter of law.

II. ASSIGNMENTS OF ERROR

[*P28]  Appellants appeal, assigning the following two assignments of error for our review:

1. THE TRIAL COURT ERRED APPLYING PRIMARY ASSUMPTION OF THE RISK TO HOLD THAT DEFENDANTS-APPELLEES WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW.

2. THE TRIAL COURT ERRED IN HOLDING THAT THERE EXISTED NO GENUINE ISSUES OF MATERIAL FACT CONCERNING DEFENDANTS-APPELLEES’ RECKLESS-NESS, THUS ENTITLING THEM TO JUDGMENT AS A MATTER OF LAW.

The McMillens have also filed a contingent cross-appeal, asserting the following sole, [**17]  assignment of error:

The Trial Court erred in denying in part the Motion for Summary Judgment of Appellees/Cross-Appellants Sharon McMillen and Mark McMillen and concluding that Appellants were social guests of the McMillens rather than licensees. The McMillens’ assignment of error is conditional upon the Courts’ ruling on the assignment of error of Appellants. If the Court overrules Appellants’ assignment of error, the McMillens will withdraw the cross-appeal.

III. STANDARD OF REVIEW

[*P29]   [HN1] Appellate review of summary judgment motions is de novo. Helton v. Scioto County Bd. of Comm’rs, 123 Ohio App. 3d 158, 162, 703 N.E.2d 841 (4th Dist.1997). “When reviewing a trial court’s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc Corp., 122 Ohio App. 3d 100, 103, 701 N.E.2d 383 (12th Dist.1997). We must affirm the trial court’s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327 (9th Dist.1995).

[*P30]   [HN2] Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse [**18]  to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party’s favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St. 3d 181, 183, 1997 Ohio 221, 677 N.E.2d 343 (1997).

[*P31]   [HN3] When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264 (1996). A moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party meets this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.

IV. FIRST ASSIGNMENT OF [**19]  ERROR — PRIMARY ASSUMPTION OF RISK

[*P32]  Appellants’ first assignment of error asserts that the trial court erred by applying the doctrine of primary assumption of the risk to the instant dispute. Appellants asserted various negligence claims against the defendants, and  [HN4] “in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “[A] successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law.” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).

[*P33]  [HN5]  “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). “Express assumption of the risk applies when parties expressly agree to release liability.” Crace at ¶ 11. “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a [**20]  known risk that acts as a defense to plaintiff’s action.” Id.

[*P34]  [HN6]  “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See also Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. “The rationale is that certain risks are so inherent in some activities that the risk of injury is unavoidable.” Crace at ¶ 13, citing Collier at 37. By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶ 12.

[*P35]  Thus,  [HN7] courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of [**21]  owners, operators, and sponsors of recreational activities. Crace at ¶ 12, 20. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 8, 802 N.E.2d 1116. The doctrine also applies to spectators and participants alike. Id. at ¶ 10.

[*P36]  Furthermore,  [HN8] when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry at ¶ 9. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 10 (noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997). See Rees v. Cleveland Indians Baseball Co., 8th Dist. No. 84183, 2004-Ohio-6112, ¶ 20, quoting Gum v. Cleveland Elec. Illuminating Co., 8th Dist. No. 70833, 1997 Ohio App. LEXIS 503 (Feb. 13, 1997) (explaining that “‘the baseball fan assumes the risk of being hit by a foul ball when [**22]  he takes his place in the stands, not at the moment the foul ball comes flying his way'”). Accordingly, Mrs. Ochall’s personal belief that the paved area next to the track was a safe zone is irrelevant to the primary assumption of the risk analysis.

[*P37]  [HN9]  “‘[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Gallagher at 432. “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Morgan at ¶ 14, citing Crace at ¶ 15. See also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744, ¶ 11. “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P38]   [HN10] The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” Marchetti at 99. See also Ferrari v. Grand Canyon Dories, 38 Cal. Rptr. 2d 65, 32 Cal. App. 4th 248, 253 (observing [**23]  that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 33 Cal. Rptr. 2d 777, 28 Cal. App. 4th 558, 565 (noting that “[d]uty is constricted in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).

[*P39]   [HN11] Whether to apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶ 12, citing Gallagher at 435. We therefore review the trial court’s application of the doctrine de novo. Id.

[*P40]  Appellants contend that the trial court disregarded relevant authority when it “looked only to ‘foreseeable’ and ‘common’ risks to invoke the doctrine.” (Appellant’s brief, at 16.) Appellants assert that the trial court “misunderstood and misapplied Ohio law” when it held that the risks which are foreseeable and common in the course of a sport or activity are the inherent risks of the activity. Id. at 16-17. The trial court observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part of the activity.'” [**24]  (Decision & Entry at 4, quoting Gentry at 144.)

[*P41]  In Gentry the Supreme Court of Ohio held that  [HN12] “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.'” Id. at ¶ 10, quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The court in Gentry noted that, “[o]bviously,” in Thompson, the court had “applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Id. at ¶ 11. See Thompson at 106 (noting that, because “[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf,” the plaintiff primarily assumed the risk of being hit by a golf ball by playing the game of golf).

[*P42]  [HN13]  Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. See Santho at ¶ 13 (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists. See id. (noting that it is “foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with [**25]  the barriers that set the perimeter of the skating surface”); Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 180-81, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925) (noting that it is “common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof”).

[*P43]  Thus, [HN14]  for primary assumption of the risk purposes, the risks inherent in an activity are the foreseeable, common, and customary risks of the activity. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 9 (noting that the “types of risks associated with the activity are those that are foreseeable and customary risks of the activity”); Deutsch v. Birk, 189 Ohio App.3d 129, 2010-Ohio-3564, ¶ 13, 937 N.E.2d 638 (12th Dist.). Accordingly, the trial court did not err by concluding that the foreseeable and cutomary risks of an activity are the inherent risks of the activity. See Gentry at ¶ 10, quoting Thompson at 104 (primary assumption of the risk applies to “‘conduct that is a foreseeable, customary part’ of the activity”).

[*P44]  Appellants further contend that the the “trial court improperly applied the doctrine when it failed to analyze whether the risks that injured Plaintiff-Appellant were inherent, necessary or unavoidable, [**26]  i.e., whether they could be eliminated.” (Appellant’s brief, at 17.) Appellants assert that the trial court “ignored” the “various ways” the danger to spectators “could have been eliminated.” Id. at 23. Relying on the accident reconstruction report, appellants assert that “the ‘potential’ danger to spectators could have been easily eliminated by (1) moving the spectator area, (2) elevating the spectator area by wooden deck, (3) installing simple barriers between the track and spectators, or (4) warning guests about the no-spectator rule.” Id. Appellants, however, misconstrue the meaning of risks which “cannot be eliminated.”

[*P45]   [HN15] The Supreme Court of Ohio has held that “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath at ¶ 19, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). In Horvath, the court observed that “collisions between skiers are an inherent risk of skiing,” as “‘other skiers are as much a part of the risk in downhill skiing, if not more so than the snow and ice, elevation, contour, speed and weather conditions.'” Id. at ¶ 20, quoting Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 25 (noting that, “by its very nature, karate, [**27]  as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated”). To determine the risks which are so inherent in an activity that they cannot be eliminated, a court must “focus[] exclusively upon the activity itself.” Schnetz at ¶ 28. See also Crace at ¶ 25.

[*P46]  For example, in Brumage v. Green, 2d Dist. No. 2014-CA-7, 2014-Ohio-2552, the court observed that “‘[l]osing control and flipping an ATV is a foreseeable and customary risk associated with the activity of driving or riding on an ATV.'” Id. at ¶ 14, quoting Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065, 2008-Ohio-5239, ¶ 56. The plaintiff argued that certain factors specific to the incident, including that he was driving the ATV on a public roadway, made the risks he faced “greater than are customary in the recreational activity of riding ATVs.” Id. at ¶ 15. The court refused to address the plaintiff’s incident specific arguments, because “flipping off an ATV and getting injured is a risk that is inherent in the recreational activity of riding an ATV.” Id. at ¶ 16. The Brumage court observed that, “‘[w]hat causes the driver to lose control is better addressed when determining whether the driver acted intentionally, [or] recklessly.'” Id. at ¶ 16, quoting West v. Devendra, 7th [**28]  Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 26, 985 N.E.2d 558. See also Morgan v. Kent State Univ. at ¶ 22, 25.

[*P47]  Accordingly, in analyzing the risks inherent to go-karting, we must focus exclusively on the activity of go-karting, and not on the actions or omissions of the defendants in this case. See Crace at ¶ 25 (observing that, if the law treated participants differently from nonparticipants, the primary assumption of the risk analysis would shift “away from the activity and its inherent risks,” and would “unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification as a participant, non-participant, * * * sponsor, provider, or otherwise,* * * with no regard for the inherent risks of the activity”). Appellants’ contentions regarding the things the defendants could have done to alter the McMillens’ track for the benefit of spectators essentially amount to claims that the various defendants were reckless. See Morgan v. Church of Christ at ¶ 16.

[*P48]  Additionally, appellants’ arguments regarding the “risks to spectators” at the McMillens’ track improperly attempts to shift the focus of the analysis away from the risks inherent in the activity. (Appellant’s brief, at 20.) [HN16]  Because the primary assumption [**29]  of the risk analysis focuses on the risks inherent in the activity at issue, spectators and participants are treated the same. Indeed, “spectators as well as participants ‘must accept from a participant conduct associated with that sport’ or activity.” Gentry at ¶ 10, quoting Thompson at 104. See also Taylor v. Mathys, 3rd Dist. No. 14-04-32, 2005-Ohio-150, ¶ 10, citing Gentry at ¶ 6 (noting that primary assumption of the risk’s “limitation on liability extends to the spectators of a recreational activity as well as the participants”); Crace at ¶ 25. “‘[T]hose entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game.'” Gentry at ¶ 12, quoting Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002).

[*P49]  Focusing on the activity at issue herein, we observe that go-karting is a recreational activity involving motorized go-karts which are propelled forward around a racetrack by a driver. During a race, a go-kart driver will attempt to drive their go-kart past the other go-karts in the race in order to be the first go-kart to cross the finish line. The joy of go-karting derives from attempting to maintain control over one’s go-kart while maneuvering, [**30]  at speed, around the go-kart track and the other go-karts present on the track. Accordingly, [HN17]  the inherent risks of go-karting include running into other go-karts on the track, or deviating from the track and running into any object present around the track. See Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263, 654 N.Y.S.2d 169 (1997) (where the plaintiff’s “go-kart veered off its intended course, striking the wall in the pit area head on,” the court observed that, “[i]n riding the go-cart, the plaintiff * * * assumed the risks inherent in the activity,” which included that the “go-cart would bump into objects”); Garnett v. Strike Holdings LLC, 131 A.D.3d 817, 820, 15 N.Y.S.3d 786 (2015) (noting that “the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart”). Compare Jussila v. United States Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn.App.1996) (noting that “a snowmobile takes on a more dangerous character when operated on a racetrack by competitors attempting to win races”).

[*P50]  Accordingly, [HN18]  the risk that a go-kart may veer off the track and strike any object present nearby is a risk inherent to go-karting. As such, Mrs. Ochall assumed that risk in the primary sense when she stood 10 to 12 feet away from the McMillens’ go-kart track while a go-kart race was in process.

[*P51]  Appellants [**31]  assert that the trial court erred “by conflating the duty analysis under primary assumption of the risk with the social host duty of care in premises liability cases.” (Appellant’s brief, at 27.) The trial court noted appellants’ argument that “a risk is not inherent if it can be eliminated with due care,” but concluded that, because “[d]efendants, as social hosts, did not have an additional duty to make adjustments to the private, residential track, * * * the risk in question [was] a risk inherent to go-kart racing on a private, barrier-less backyard track.” (Decision & Entry at 5, 7-8.) Appellants contend that the trial court’s analysis improperly mixed “duty with breach.” (Appellant’s brief, at 27.) We agree.

[*P52]  The trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. Instead, the trial court wrongly focused on the defendants, and the duty they owed to appellants, rather than focusing on the activity at issue. See Schnetz at ¶ 30 (finding that the trial court erred by concluding that primary assumption of the risk did not apply “to inmate claims against a prison because a prison owes a duty of care to inmates in its custody and [**32]  control,” as such a “holding shift[ed] the focus of the analysis away from the activity and its inherent risks and improperly focuse[d] upon the extent of the defendant’s involvement and the defendant’s classification”).

[*P53]  Although the trial court erred by considering the defendants’ duty under the primary assumption of the risk analysis, this error does not amount to reversible error. Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons. See Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 115, 637 N.E.2d 963 (2d Dist.1994) (noting that, since the reviewing court must independently determine, as a matter of law, whether summary judgment was properly granted, “[a] summary judgment based on a legally erroneous analysis of the issues must be affirmed if the appellate court independently determines that upon the record summary judgment should have been rendered [**33]  as a matter of law, albeit for different reasons”).

[*P54]  Appellants assert that the trial court disregarded the two Ohio go-karting cases, Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999) and Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002), in reaching its summary judgment decision. The trial court noted the cases, but correctly found the cases inapplicable to the present dispute. (See Decision & Entry at 5-6.)

[*P55]  In Reed the plaintiff was injured at a charity go-kart race being held on city streets. The race organizers had placed a four-foot high fence and bales of hay around the race perimeter to separate the sidewalk from the racetrack. The plaintiff was “initially watching the race from a spectator area,” but had moved to another area to watch the race, which was still “protected by the orange fencing” but had “fewer hay bales.” Id. Two go-kart drivers collided during the race, causing one go-kart to veer off the track and strike the plaintiff. The court stated that it was “not convinced that injury to a spectator [was] the kind of risk so inherent to the sport of go-kart racing that the appellant could be deemed to have consented to it.” Id. The court noted that the plaintiff “testified that she observed [**34]  other accidents during go-kart races and that there had, in fact, been several other accidents on the day she was hit.” Id. The court concluded that simply observing other go-karts run into each other did “not mean that injury to spectators as a result of karts leaving the track [was] inherent to racing,” but stated that it “raise[d] a question of fact as to whether such risk was obvious to appellant.” Id.

[*P56]  As Reed is a decision from the Third District Court of Appeals, it holds no precedential value in this district. Furthermore, as the Reed court failed to engage in a proper primary assumption of the risk analysis, we do not find the decision persuasive. Reed did not attempt to ascertain the risks inherent to the activity of go-karting. Instead, the court simply concluded that injury to spectators was not an inherent risk of go-karting. In so concluding, the court treated spectators differently from participants, in violation of Gentry. The Reed court also inappropriately considered the plaintiff’s subjective understanding of the risk, in further violation of Gentry.

[*P57]  Unlike the present case which concerns a private, free, backyard go-kart track, in Goffe the plaintiff was a business invitee [**35]  at a commercial go-kart track. The plaintiff was injured exiting her go-kart at the end of the ride when another driver accidently accelerated and “struck a parked go-cart in the off-loading area of the track,” which then “struck Ms. Goffe in the leg.” Id. The plaintiff alleged defective design had caused her injury because, at the end of the ride, a gate would funnel the go-karts “into a confined pit area so that a runaway go-cart had no option but to strike go-carts in the unloading area.” Id. The court observed that “[o]ne who rides an amusement device assumes the ordinary risks inherent in the ride, insofar as those risks are obvious and necessary, but only so long as the device is properly designed and the operator has used proper care in its construction and operation.” Id., citing Pierce v. Gooding Amusement Co., 55 Ohio Law Abs. 556, 90 N.E.2d 585 (1949). The court concluded that the business had breached its “duty of ordinary care to Ms. Goffe by desiging an amusement ride which created an unreasonable danger that the rider would be injured while exiting the ride but before reaching a place of safety.” Id.

[*P58]  Relying on Goffe, appellants contend that primary assumption of the risk cannot apply in this matter, because defendants “enhanced the unusual risk [**36]  to spectators by operating a defective track.” (Appellant’s brief, at 23.) Appellants assert that defendants “failed to design, build and operate the track to account for spectator safety by, among other steps, moving the spectator area inside the track and elevating it.” Id. at 24. Appellants argue that the track was defective because defendants “built and maintained a ‘short chute’ at the final high-banked turn to create faster go-kart speeds approaching the spectator area.” Id. However, there is no evidence in the record indicating that either the short-chute or the high-banked turn created faster go-kart speeds, or that these aspects of the track caused the accident.

[*P59]  Brian McMillen explained that, in 2010-11, he “raised the elevation” on the curve approaching that start/finish area in order to “control flooding from the pond and the ground water.” (B. McMillen Dep. at 135.) The alteration resulted in the track “dropping three or four inches over that 30-40 feet” as a kart approached the straightaway into the start/finish line. Id. at 149. Brian referred to the straightaway as a “short chute,” explaining that a “short chute” is just a “small piece of straightaway between two turns.” Id. at 150. Notably, Brian [**37]  confirmed that this alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” Id. at 149.

[*P60]  Hawn concluded that “it was mathematically possible for a kart to be driven successfully through the high-banked curve at the south end of the track” approaching the start/finish area “at full (maximum) speed,” and explained that “[t]he laws of Newtonian physics dictate that if a kart were to exceed the critical speed of the high-banked curve or fail to maintain a traversable line through the curve, the kart will break tracation and likely slide towards the outside of the curve beyond the apex.” (Acc. Reconstruction Report at 10, 13. ) Hawn stated that Doe’s go-kart was travelling between 18 to 25 miles per hour when it struck Mrs. Ochall, “which was consistent with the critical speed calculations for the kart traversing the high-banked curve.” Id. at 11. Thus, Doe did not exceed the critical speed of the high-banked curve. Although Hawn referred to the high-banked curve as the “fastest curve of the track,” he did not find that the curve created unreasonably fast go-kart speeds or that the curve would cause a driver to lose control of their go-kart. Id. at 13.

[*P61]  Indeed, Hawn [**38]  concluded that the “design, layout, construction and overall environment of the track facility (with the generous clear zone) was reasonably safe for the ‘operators of the karts.'” Id. at 17. Hawn also stated that the “the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) Id. at 15. Thus, appellants own expert concluded that the design of the track was safe. Appellants have failed to demonstrate a genuine issue of material fact regarding whether the track was designed defectively.

[*P62]  Appellants’ contention that the McMillens’ track was defectively designed because there was no infield, elevated, spectator platform, does not amount to an argument that the track was designed defectively. An elevated viewing platform would not be part of the track itself; rather, it would be a separate structure near the track. Appellants’ contention that defendants should have constructed a viewing platform for spectators, or taken other actions for spectators, do not allege that the track itself was designed defectively, but are essentially claims that the defendants were reckless by failing to build a spectator platform.

[*P63]  Based on the foregoing, we find that Mrs. Ochall [**39]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track. Appellants’ first assignment of error is overruled.

V. SECOND ASSIGNMENT OF ERROR – RECKLESSNESS

[*P64]  Appellants’ second assignment of error asserts that the trial court erred in finding no genuine issues of material fact regarding defendants’ recklessness.

[*P65]  [HN19]  An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.'” Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Thompson at 105.

[*P66]  Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, [**40]  it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.” Id. Conversley, “any conduct which is characterized by the strong probability of harm that recklessness entails, and which occurs outside the normal conduct and customs of the sport, may give rise to liability.” Id. In assessing recklessness, courts must recognize the “inverse relationship between duty and dangerousness,” as the “‘quid pro quo of an “assumed greater risk” is a diminished duty.'” Id., quoting Hanson v. Kynast, 38 Ohio App. 3d 58, 64, 526 N.E.2d 327 (5th Dist.1987).

[*P67]  Appellants assert that the trial court “wrongly construed evidence regarding Defendants’ failure to warn Andrea Ochall about the track builder Brian McMillen’s design and rule prohibiting spectators in a light most favorable to [plaintiffs].” (Appellant’s brief, at 34.) Appellants assert that, construing the evidence in their favor, there are genuine issues of material fact regarding whether McMillens and/or McNamers disregarded Brian McMillen’s rule and “knowingly failed to warn or inform Andrea Ochall about the Brian McMillen’s design and policy.” Id. at 38.

[*P68]  As noted above, Brian McMillen testified that he did not design the track to account for spectators. (B. McMillen Dep. [**41]  169.) Brian explained that he “rarely” had spectators at the track, but that when he did, he told them to “[s]tay up in the barn.” Id. at 172, 175. However, Brian also did not enforce his no-spectator rule when he was at the track. Brian noted that when the track was first built his “dad may come out or one of [his] friends may come out and stand somewhere in that vicinity,” of the paved area next to the start/finish line, “and watch us turn a couple laps.” Id. at 172. Brian stated that he had never kicked any spectator of the paved area next to the start/finish line. Id. at 182-83.

[*P69]  Sharon McMillen noted that Brian told her “[a] couple of years ago” that he had a no-spectator rule when he was at the track, but she clarified that he never told her that the track wasn’t designed for spectators. (Feb. 10, 2015 Sharon McMillen Dep. at 104-05. Sharon noted that, when she was out at the track, she would stand “[u]sually in the grass out by the corner where the bench sits,” explaining that’s “just where we stand.” Id. at 100, 102. Sharon stated that she previously stood on the paved area next to the start/finish line when Brian was also present at the track, and that he never told her to move from that location. Id. at 130.

[*P70]  Indeed, for adult spectators at the McMillens’ [**42]  go-kart track, there “was no rule” regarding where they had to stand. Id. at 108-09. Sharon McMillen noted, “[t]here’s seven acres they can stand on. They can stand anywhere.” (S. McMillen Depo. 108.) Sharon believed it was safe for people to stand on the paved area next to the start/finish line at the track, “[a]s long as they’re watching what’s going on.” Id. at 102, 108.

[*P71]  The McMillens, as the property owners who granted the McNamers permission to bring the Ochalls upon their land, were the implied social hosts of the Ochalls. See Estill v. Waltz, 10th Dist. No. 02AP-83, 2002-Ohio-5004, ¶ 32 (noting that,  [HN20] to be classified as a social guest, “the evidence must show the host extended to the guest an actual invitation, express or implied”). As social hosts, the McMillens owed their guests the following duties: (1) to exercise ordinary care not to cause injury to their guests by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will [**43]  not discover such dangerous condition. Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951), paragraph three of the syllabus. Accordingly, the McMillens had a duty to warn the Ochalls of any dangerous condition on their premises which the McMillens had reason to believe the Ochalls did not know about and could not discover.

[*P72]  As the lack of barriers around the McMillens’ track was readily apparent, there was no dangerous condition about the track which the McMillens should have had any reason to believe the Ochalls did not know about or could not discover. Indeed, Mrs. Ochall saw go-karts driving off the track throughout the day, and admitted that she knew that there “was no barrier in front of [her] * * * to protect [her] from getting hit by a car if it left the track.” (A. Ochall Dep. at 172-73.) Accordingly, the McMillens had no duty to warn appellants about Brian McMillen’s personal track rule. As such, viewing the evidence in a light most favorable to the Ochalls, we are unable to find a genuine issue of material fact regarding whether the McMillens intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Section 500, at 587 (1965). As such, the McMillens were not reckless by failing to inform [**44]  appellants about Brian’s rule.

[*P73]  Regarding the McNamers, appellants assert that the McNamers were reckless because they “knew of [Brian McMillen’s] prohibition and failed to inform guests.” (Appellant’s brief, at 36.) Liz McNamer stated that she could not recall if Brian McMillen ever told her about his no-spectator rule, noting that “[h]e could have told [her] husband, but * * * [she didn’t] recall.” (L. McNamer Dep. at 66.)

[*P74]  During Brian McMillen’s deposition, counsel asked him if he ever told “people, including the McNamers or anybody, that if you’re not driving a go-kart, then you better not be standing anywhere on this track, whether it’s the access road, sitting on that bench, anywhere on this asphalt period?” (B. McMillen Dep. at 175.) Brian responded, stating:

Absolutely. Absolutely we’ve talked about that with the McNamers, with Michael, their son, with my brother, myself, my dad, we’ve all discussed the common sense rules of the road that we’re going to follow out here on this go-kart track. Absolutely.

* * *

And, again, you know, it’s not like we sat down and said, hey, let’s write a rule book for the track. I’m talking about general guys hanging out in the garage, garage talk, hey, [**45]  these are the rules of the road we’re going to follow. Again, we’re not putting together a commercial facility here. We’re going — we’re putting together a little backyard toy here.

Id. at 175-76.

[*P75]  When asked if he told the McNamers that he “didn’t build this track for there to be any bystanders. And that if you’re not racing, no one is allowed to be standing around watching people racing or in go-karts going around the track on any part of this asphalt,” Brian stated “[t]hat’s just generally speaking what we have always gone with.” Id. at 177.

[*P76]  Liz explained that everytime she had ever been to the track people would be standing in the paved area adjacent to the start/finish line. (L. McNamer Dep. at 67.) Liz also always stood in that area and believed it was safe to stand there as long as “you’re observing and — and paying attention and watching what’s occurring.” Id. at 56-57. Porter similarly testified that whenever he had been to the track, people always stood on the asphalt near the start/finish line. (J. Porter Dep. at 44.)

[*P77]  To determine whether the McNamewrs were reckless in failing to inform the Ochalls about Brian McMillen’s personal track rule, we ask whether the McNamers intentionally failed to inform the Ochalls about [**46]  Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). As noted, [HN21]  primary assumption of the risk “‘relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity.'” Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 2007-Ohio-1800, ¶ 34, 874 N.E.2d 811 (10th Dist.), quoting Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225, 236, 2002 Ohio 1850, 776 N.E.2d 1126 (1st Dist.2002).

[*P78]  The parties do not direct us, and our independent research has failed to produce, an Ohio case delineating the duty which a non-landowner, sponsor or organizer of a free activity owes to the participants of the activity.  [HN22] Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recereational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity.” Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 1162, 150 Cal. Rptr. 3d 551, 290 P.3d 1158 (2012).1 See also Saville v. Sierra College, 36 Cal. Rptr. 3d 515, 133 Cal. App. 4th 857 (2005) (noting that an “organizer of an activity is under a duty not to increase the risk of injury inherent in the activity”); Estate of McNeil v. FreestyleMX.com, Inc., 177 F.Supp.3d 1260 (S.D.Cal. 2016) (noting that the “organizer and promoter of the freestyle motocross event” owed the plaintiff a limited duty of care, “breached only if they increased the risk beyond that which is inherent to the activity itself”); Amezcua v. Los Angeles Harley-Davidson, Inc., 132 Cal. Rptr. 3d 567, 200 Cal. App. 4th 217 (2011) (concluding that the sponsor of the activity, had not “increased the inherent danger [**47]  of riding in an organized motorcycle ride,” because “traffic slowing and other drivers not paying attention are inherent risks of riding in an organized motorcycle ride on public highways,” and to close down the freeway in order to eliminate these risks “would alter the parade-like nature of riding in a motorcycle procession on a public highway”).

1 In Nalwa the plaintiff argued that sponsors of recreational activities should owe a greater duty to participants. The court disagreed, holding as follows:

 [HN23] A rule imposing negligence duties on sponsors, organizers and operators of recreational activities would encompass not only commercial companies like defendant but also noncommercial organizations without extensive budgets or paid staff. Such groups might not easily afford insurance to cover injuries that are inherent risks of the activity; nor could they readily collect large fees from participants to cover that cost. The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury.

Nalwa at 1162.

 [*P79]  Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. [**48]  Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

[*P80]  Appellants next assert that the trial court “ignored factual issues regarding Defendants’ concealing the danger from Andrea Ochall by installing a bench to entice her to congregate on the paved area next to the track not designed for spectators.” (Appellants’ brief, at 38-39.) Mr. McMillen had placed a light, moveable, park style bench on the back of the paved area adjoining the start/finish line. (S. McMillen dep. at 106.) Brian McMillen explained that the bench was for drivers to [**49]  sit on following a race, noting that, after a race, “you’re tired, your back hurts, your legs are sore, you’re sweating. * * * A guy will sit on that bench and relax for a minute.” (B. McMillen Dep. at 170.)

[*P81]  Sharon McMillen agreed with counsel that someone might think “if there’s a bench around, that that may be a safe place to be because there’s a bench where you could sit.” (S. McMillen Dep. at 106.) However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.” (J. Porter Dep. at 107.) Compare Kacsmarik v. Lakefront Lines Arena, 8th Dist. No. 95981, 2011-Ohio-2553, ¶ 10, 13 (concluding that the “bench was not the proximate cause of [plaintiff’s] injuries,” as the plaintiff was not “sitting on the bench when she was injured” as she had “left the bench, [and] opened the ice rink door”).

[*P82]  Construing the evidence in appellants’ favor, [**50]  we cannot find that the McMillens knew or had reason to know of facts which would have lead them to realize that placing a bench near their go-kart track created an unreasonable risk of physical harm to another, or amounted to conduct substantially greater than negligent conduct. Simply placing a bench by the track did not create an unreasonable risk of physical harm to others, as the bench did not obsecure anyone’s ability to appreciate the barrier-less nature of the go-kart track.

[*P83]  Appellants also state that Hawn concluded that Brian McMillen’s 2010-11 alteration to the track, “enhanced the danger to spectators by creating greater risk go-karts would lose control.” (Acc. Reconstruction Report at 13-14.) (Appellant’s brief, at 41.) Appellants assert that “[t]his remodeling and the enhanced risk were not known to Andrea Ochall, whereas McMillens knew that they had made the track faster for go-karts approaching the spectator area where they had placed the bench.” (Appellant’s brief, at 41.) Although appellants do not directly argue that the McMillens acted recklessly by altering their track, we observe that the McMillens were not reckless in this regard, as there is no evidence linking the [**51]  2010-11 alteration to an increased risk that a driver would lose control of their go-kart.

[*P84]  Hawn stated that the paved area next to the start/finish line, and “just beyond the exit to the fastest curve of the track,” would be a danger zone to persons afoot, but only “if a driver should experience such a loss of control and deviate from the track.” (Acc. Reconstruction Report at 13.) Similarly, Hawn stated that the paved area next to the track was dangerous for spectators, but only in the event that “a kart deviated from the track, at speed, due to driver loss of control in the curve.” Id. at 14. Thus, Hawn’s opinion that the paved area next to the start/finish line was unsafe for spectators was based on if a driver should lose control of their go-kart. Hawn did not find that the elevation of the curve, or that the straightaway itself, would cause a driver to lose control of their go-kart. Brian confirmed that the 2010-11 alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” (B. McMillen Dep. at 149.)

[*P85]  Furthermore, Hawn opined, and the record supports, that it was Doe’s act of “discarding an unwanted headband” which caused her to fail [**52]  to “maintain steering control [which] was a significant causative factor” of the accident. (Acc. Reconstruction Report, 14-15.) Thus, it was Doe’s act of removing her hand from the steering wheel to remove her headband from her face, and not the elevation of the high-banked curve, which caused the accident.

[*P86]  Appellants also state that “an easy, inexpensive precaution” for the McMillens was to “relocate the spectator area to the inside of the track and raise the elevation where their guests stood.” (Appellant’s brief, at 41.) Appellants do not directly assert that the McMillens acted recklessly by failing to construct an elevated spectator platform. Regardless, the McMillens were not reckless by failing to construct a spectator platform, because they had no duty to do so.  [HN24] “‘There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises.'” Scheibel at 315, quoting 38 American Jurisprudence 778, Section 117.

[*P87]  Appellants next assert that defendants concealed the “danger by failing to educate themselves about [**53]  safety or warn guests of known danger.” (Appellant’s brief, at 43.) Appellants observe that Sharon McMillen instructed drivers, “don’t be bumping into anybody,” but assert that she was reckless because she did not know how fast the go-karts traveled, wasn’t aware of the go-kart’s maintenance schedule, and did not follow the go-kart manufacturer’s height or age restrictions. Id. at 44-45. Appellants similarly assert that Liz McNamer was reckless because she did not know the make or model of the go-karts, did not know the go-kart manufacturer’s age or height restrictions, and did not know how fast the go-karts traveled. Id. at 45-46.

[*P88]  Appellants, however, fail to explain what any of these facts have to do with the accident. The accident did not result from unsafe go-kart operation; it occurred because Doe’s headband slipped into her eyes. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855 (1st Dist.), ¶ 43, 830 N.E.2d 1252 (observing that, although the plaintiffs “presented evidence that the handrail was deteriorating and that a 1 to 50 instructor-to-student ratio was too high to be considered safe, they presented no evidence that either of these factors played even the slightest role in causing Eric’s injury”). Appellants fail to establish a genuine issue of material fact regarding whether [**54]  the defendants intentionally failed to educate themselves about go-kart safety when they had a duty to do so, or that they intentionally failed to warn appellants about the dangers of go-karting when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). Accordingly, the record fails to demonstrate that any of the defendants acted recklessly by failing to educate themselves about safe go-kart operation or by failing to warn guests of the dangers of go-karting.

[*P89]  Appellants lastly assert that the trial court “construed evidence regarding [Doe’s] driving and supervision of her by Liz McNamer and James Porter in a light most favorable to Defendants.” (Appellant’s brief, at 48.) Appellants note that, earlier in the day before the accident, Doe drove off the track, and that “[o]ther children came partially off the track as well.” Id. at 48. McNamer went and spoke to Doe after she drove off the track, and “cautioned her and advised her to be careful.” (L. McNamer Dep. at 129.) McNamer explained that “all the children had went off” the track that day, but that she only spoke to Doe because she was Doe’s “grandparent.” Id. at 131. McNamer noted that, “[n]o one else said anything to me that anyone was driving reckless or [**55]  that [Doe] wasn’t in control.” Id. Porter testified that Doe’s driving that day was “[t]ypical for past driving and typical of the driving of all of the other children who were racing that day.” (J. Porter Dep. at 105.) Porter stated that he never told his daughter, or anyone, to slow down. Id. at 152.

[*P90]  Mrs. Ochall testified that Doe “had been asked numerous times to slow down and watch her speed. * * * She was warned by her father, by Liz.” (A. Ochall Dep. at 27.) Mrs. Ochall characterized Doe’s driving as “out of control,” because she had “gotten off the track” and “was just driving aggressively.” Id. at 45-46. Mr. Ochall stated that Doe was “driving aggressively,” by “[p]assing other cars.” (R. Ochall Dep. at 53.) However, Mrs. Ochall explained that she took no precautions for her own personal safety in light of Doe’s allegedly aggressive driving, because she “felt that [Doe’s] grandmother and father addressed the behavior with [Doe].” (A. Ochall Dep. at 48.)

[*P91]  Accordingly, construing the evidence in appellants’ favor, Porter and McNamer watched the children driving, all the children drove off the track that day, and McNamer and Porter cautioned Doe about her driving. Although Mrs. Ochall characterized Doe’s driving as aggressive, [**56]  she felt that McNamer and Porter adequately addressed Doe’s behavior by speaking to her. Appellants fail to demonstrate how Porter or McNamer engaged in conduct which was substantially greater than negligent conduct by keeping an eye on Doe and cautioning her.

[*P92]  Appellants assert that the trial court “ignored the Ochalls’ testimony that [Doe] was driving aggressively.” (Appellant’s brief, at 50.) The trial court, however, did not ignore this evidence. The court noted appellants’ contention that Doe was driving aggressively by “passing other karts and veering off the track.” (Decision & Entry at 20.) The trial court observed that Mr. Ochall admitted that “he passed other karts while driving on the track that day,” and that Doe “was not the only child to veer off the track that day, as one of [apppellants’] children also veered off the track while driving.” Id. at 21. The court concluded that there was no evidence that Doe’s “actions prior to the accident amounted to aggressive driving.” Id.

[*P93]  Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand [**57]  from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855, ¶ 43, 830 N.E.2d 1252 (1st Dist.).

[*P94]  Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall. See West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 37, 985 N.E.2d 558, quoting 2 Restatement of the Law 2d, Torts, Section 500, Comment g (1965) (noting that  [HN25] “reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man”).

[*P95]  Because appellants fail to establish any genuine issues of material fact regarding whether the defendants engaged in reckless misconduct, appellants’ second assignment of error is overruled.

VI. CONCLUSION

[*P96]  The incident at the McMillens’ go-kart track which caused Mrs. Ochall’s injury was, unquestionably, a terrible and tragic accident. However, every tragic accident does not result in tort liability. Because Mrs. Ochall [**58]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

Judgment affirmed.

SADLER, J., concurs.

DORRIAN, P.J., concurs in and part dissents in part.

CONCUR BY: DORRIAN (In Part)

DISSENT BY: DORRIAN (In Part)

DISSENT

DORRIAN, P.J., concurring in part and dissenting in part

[*P97]  I respectfully concur in part and dissent in part.

[*P98]  I concur with the majority that primary assumption of the risk requires an examination of the recreational activity or sport itself. For this reason, and pursuant to Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 10, 802 N.E.2d 1116, I also agree with the majority that spectators and participants are to be treated the same and appellants’ arguments regarding the “risks to spectators” improperly attempt to shift the focus of the analysis away from the risks inherent in the activity. (Lead opinion at ¶ 48.) Consistent with [**59]  this, I concur with the majority and am not persuaded by the Third District Court of Appeals’ decision in Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002).

[*P99]  I concur with the majority that the trial court erred when it conflated the duty analysis under primary assumption of the risk with the social host duty of care under premises liability.

[*P100]  I concur with the majority that the trial court did not err when it observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part[‘] of the activity.” (Emphasis added.) (July 31, 2015 Decision at 4, quoting Gentry at ¶ 10.) (Lead opinion at ¶ 43.) However, I would find further, notwithstanding the trial court’s correct legal statement, that the trial court erred by concluding that “foreseeable risks are inherent risks of recreational activities” and in not conducting the additional analysis of whether the risk is ordinary or customary to the game. (July 31, 2015 Decision at 7.) Given this court’s three part test in Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255 (10th Dist.), which requires that in order to be considered inherent, a risk be both ordinary and foreseeable, I would interpret the term “customary” [**60]  in this context as “ordinary.” To interpret “customary” as “common” or “foreseeable” would merge the doctrines of primary and implied assumption of the risk.

[*P101]  I concur with the majority that the Supreme Court of Ohio has held that “‘[t]o be covered under the * * * doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Knoesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). (Lead opinion at ¶ 45.) I would note further that contrary to appellees’ suggestion that courts do not typically conduct a detailed analysis of whether a risk cannot be eliminated, a survey of Tenth District case law reveals that this court adheres to this requirement. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of risk is appropriate.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997) (finding the plaintiff’s “injuries occurred as a result of a commonly known danger ordinary to the sport of thoroughbred horse racing”). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 13, 15, 25 (noting that, “by its very nature, karate, as a martial art, is an inherently dangerous activity from which [**61]  the risk of harm cannot be eliminated”); Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 35, 924 N.E.2d 906 (10th Dist.) (noting that in cheerleading, “the risk [of injury] is forever present and may only be reduced to manageable levels. Manageable risks are nevertheless risks. It necessarily follows that the risk of injury is incapable of being completely eliminated”); Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 16 (affirming the trial court’s finding “that hiking is a recreational activity to which the doctrine [of primary assumption of the risk] applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night”); Main v. Gym X-Treme, 10th Dist. No. 11AP-643, 2012-Ohio-1315, ¶ 9, 12-13 (noting “[t]he rationale behind the doctrine [of primary assumption of the risk] is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable,” and finding that “tripping, slipping, and falling are all normal inherent risks” with “‘play time and gymnastic activities'”); Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 30, 49 (10th Dist.) (noting that “[i]f that activity is one that is inherently dangerous and from which the risks cannot be eliminated, a finding of primary assumption of the risk is appropriate” and finding that “[i]njury resulting [**62]  from colliding with another player on the field of play, even accidentally, is an ordinary danger of the sport of football”).

[*P102]  I concur with the majority that to determine the risks that are so inherent in an activity that they cannot be eliminated, a court must “‘focus[] exclusively upon the activity itself.'” (Lead opinion at ¶ 45, quoting Schnetz at ¶ 28.) I would clarify further that the contention that a risk must be one that is so inherent to the sport or activity that it cannot be eliminated is appropriately considered in the context of the ordinary or customary analysis. I would also suggest that in determining the same, a court should consider the goal of the primary assumption of the risk doctrine as discussed by the majority: “‘to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.'” (Lead opinion at ¶ 38, quoting Marchetti v. Kalish, 53 Ohio St.3d 95, 99, 559 N.E.2d 699 (1990), and Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248, 253, 38 Cal. Rptr. 2d 65 (3d Dist.1995) (observing that the “overriding consideration in the application of primary assumption of the risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 28 Cal.App.4th 558, 565, 33 Cal. Rptr. 2d 777 (5th Dist.1994) (noting that “[d]uty is constricted [**63]  in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).)

[*P103]  Finally, I concur with the majority’s ultimate conclusion that the trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. I dissent, however, with the majority’s consideration and determination, in the first instance, of the same.

[*P104]  Because the Supreme Court in Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996), instructs that courts must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery and because of the great impact a ruling in favor of a defendant would have, I would not determine the issue in the first instance on appeal. Rather, I would remand this case to the trial court with instructions to consider whether the risk of a go-kart veering off the track and striking objects/persons in its path meets the criteria that “(1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” (Emphasis added.) Santho at ¶ 12. In considering whether [**64]  such risk is ordinary to the game, I would instruct the court to (1) focus on the activity of go-karting itself; and (2) consider whether such risk can be eliminated without inhibiting vigorous and free participation, fundamentally changing or destroying the activity of go-karting. Such consideration necessarily involves an examination of the nature of the activity, the purpose or goals of the activity, and the rules or customs of the activity, where applicable.

[*P105]  Finally, I dissent from the majority’s consideration of the second assignment of error. Because I would reverse and remand this case for the trial court to determine, in the first instance, whether primary assumption of the risk applies, I would find to be moot the second assignment of error regarding whether the trial court erred in holding appellees did not act recklessly.2

2 I would note that appellants’ argument, pursuant to Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999), that primary assumption of the risk cannot apply because appellees “enhanced” the risk by defective design or operation, would be appropriately addressed when considering whether the exception of recklessness or willfull or wanton conduct applies to application of primary assumption of the risk.