Soderberg v. Anderson, 922 N.W.2d 200, 2019 Minn. LEXIS 32, 2019 WL 287781

Soderberg v. Anderson, 922 N.W.2d 200, 2019 Minn. LEXIS 32, 2019 WL 287781

Supreme Court of Minnesota

January 23, 2019, Filed

A17-0827

Reporter

922 N.W.2d 200 *; 2019 Minn. LEXIS 32 **; 2019 WL 287781

Julie A. Soderberg, Respondent, vs. Lucas Anderson, Appellant.

Prior History:  [**1] Court of Appeals.

Soderberg v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Disposition: Affirmed.

Judgment affirmed.

Counsel: James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

Judges: Lillehaug, J., Took no part, Anderson, J.

Opinion by: LILLEHAUG

Opinion

[*201]  LILLEHAUG, Justice.

In 2016, a ski area outside Duluth, Spirit [**2]  Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson, 906 N.W.2d 889 (Minn. App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.”  [*202]  Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more [**3]  difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson—riding his snowboard “regular”—went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”1 Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained [**4]  serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg, 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790 (Minn. App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg, 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct “enlarged the inherent risks of skiing.” Id. at 893-94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id. at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he [**5]  owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. HN1[] The doctrine of primary assumption of risk is part of our common law. Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826, 827-28 (Minn.  [*203]  1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary assumption of risk. HN2[] Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose, 192 N.W.2d at 827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland, 812 N.W.2d 113, 120-21 (Minn. 2012); Springrose, 192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative defense”). Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly, 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose, 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption [**6]  of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'” Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen, 299 Minn. 39, 216 N.W.2d 124, 127 (Minn. 1974)); see Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk “is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty”).

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n, 122 Minn. 327, 142 N.W. 706 (Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707-08. We determined that the ball club was “bound to exercise reasonable care” to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n, 185 Minn. 507, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided [**7]  enough screened-in seating “for the most dangerous part of the grand stand.” Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 251 Minn. 440, 88 N.W.2d 94 (Minn. 1958), that HN3[] a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with “a reasonable  [*204]  opportunity to view the participants from a safe area.” Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey, 261 Minn. 481, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim, 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck, 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth, 224 Minn. 556, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated [**8]  that “[a]ny person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.” Id. at 455.2

We applied the doctrine to recreational figure skating in Moe v. Steenberg, 275 Minn. 448, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff “‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo. Ct. App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. HN4[] We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 299 Minn. 39, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully [**9]  avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison, 300 Minn. 273, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121−22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 305 Minn. 506, 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the  [*205]  issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.3 To do so would relieve [**10]  skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, HN5[] “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that [**11]  the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. HN6[] “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 180 Minn. 21, 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.4 See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99, 2016 CO 6 (Colo. 2016); Blackburn v. Dorta, 348 So. 2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 298 Kan. 299, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1132-33 (La. 1988); Wilson  [*206]  v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 200 Mont. 205, 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 41 N.J. 272, 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 2003 ND 154, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 296 Ore. 610, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905−06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 265 Va. 98, 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 182 W. Va. 276, 387 S.E.2d 511, 517-19 (W. Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine, 73 Wis. 2d 547, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278, 1281−84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent [**12]  patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.5

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling, “‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role—limited as it may be—for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied,6 erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court [**13]  of appeals’ disposition—reversal and remand—on a different ground.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.


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

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

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

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

Plaintiff: Jennifer Lee, et al.

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release and Assumption of the Risk

Holding: For the Plaintiff

Year: 2017

Summary

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

Facts

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

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

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

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

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

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

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

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation

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

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

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

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

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

So Now What?

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

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

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

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

What do you think? Leave a comment.

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

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


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

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

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

2016-04353

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

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

December 13, 2017, Decided

NOTICE:

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

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

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

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

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

OPINION

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

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

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

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

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

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

“Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Koubek v Denis, 21 AD3d 453, 799 N.Y.S.2d 746). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49; see Morgan v State of New York, 90 NY2d at 484; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526). Moreover, “by engaging in a sport or recreational [***3] activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d at 484; see Simone v Doscas, 142 AD3d 494, 494, 35 N.Y.S.3d 720).

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

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

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


Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?

NSSA website that describes skiing as safe if done under control contributes to the reasoning that skiers should be able to sue other skiers in a sport.

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

State: Minnesota; Supreme Court of Minnesota

Plaintiff: Julie A. Soderberg

Defendant: Lucas Anderson

Plaintiff Claims: Negligence

Defendant Defenses: Primary Assumption of the Risk

Holding: For the Plaintiff

Year: 2019

Summary

Primary Assumption of the Risk does not apply to collisions between skiers on the slopes in Minnesota. Any collision between two people using a ski area will now result in lawsuits.

The Minnesota Supreme Court believed that skiing, and snowboarding were not inherently dangerous because they could be done with common sense and awareness to reduce the risk, as quoted from the NSAA website.

Facts

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.” Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law.

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

The court first looked at Assumption of the risk and the differences between Primary Assumption of the Risk and Secondary Assumption of the Risk.

Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Therefore, primary assumption of risk precludes liability for negligence, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'”

The court found the ski instructor did not assume the risk of being hit. “Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So, the issue is whether she assumed the risk by implication.”

This first step in the analysis, that the ski instructor did not assume the risk of being hit, which the defense agreed to, sealed the fate of the decision. I think now days; most people consider the risk of a collision to be possible on the slopes.

So, the court then went through the history of primary assumption of the risk in Minnesota and how it was applied in baseball, skating and other sports. It then related why it has not applied primary assumption of the risk to snowmobiling.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity.

The court found that although skiers do collide with each other, it is not so frequent that it is considered an inherent risk of the sport.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .”

The National Ski Area Association, (NSAA) has this statement on their website:

Common Sense, it’s one of the most important things to keep in mind and practice when on the slopes. The National Ski Areas Association (NSAA) believes education, helmet use, respect and common sense are very important when cruising down the mountain. NSAA developed Your Responsibility Code to help skiers and boarders be aware that there are elements of risk in snowsports that common sense and personal awareness can help reduce.

The National Ski Patrol, which probably has a better understanding of the risks of skiing does not have that statement on its website. The good news is both the NSAA, and the NSP now at least have the same code on their websites. That was not true in the past.

The court then stated it just did not want to extend primary assumption of the risk to another activity.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.”

Finally, the court stated that it did not believe this decision would lead to fewer Minnesotans skiing. It will, but not by much. However, what it will do will be to increase litigation amount skiers and boarders. And if you are looking at going to a state to ski, knowing you can be sued if you hit someone else on the slopes might have you ski in another state.

Minnesota now joins Colorado in having billboards you can see leaving the ski areas asking if you have been hurt while skiing.

So Now What?

The court used an interesting analysis coupled with language from the NSAA website to determine that skiing was like snowmobiling and totally controllable, therefore, it was not a sport where you assume the risk of your injuries.

This is a minority opinion. Something this court did not even consider in its opinion. Most states you assume the risk of a collision. This decision was clearly written to increase the litigation in the state.

What do you think? Leave a comment.

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Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Julie A. Soderberg, Respondent, v. Lucas Anderson, Appellant.

No. A17-0827

Supreme Court of Minnesota

January 23, 2019

Court of Appeals Office of Appellate Courts

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

SYLLABUS

The doctrine of implied primary assumption of risk does not apply to a claim in negligence for injuries arising out of recreational downhill skiing and snowboarding.

Affirmed.

OPINION

LILLEHAUG, JUSTICE.

In 2016, a ski area outside Duluth, Spirit Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson, 906 N.W.2d 889 (Minn.App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”[1]Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg, 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790 (Minn.App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg, 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct “enlarged the inherent risks of skiing.” Id. at 893-94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id. at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. The doctrine of primary assumption of risk is part of our common law. Springrose v. Willmore, 192 N.W.2d 826, 827-28 (Minn. 1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary assumption of risk. Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose, 192 N.W.2d at 827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland, 812 N.W.2d 113, 120-21 (Minn. 2012); Springrose, 192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative defense”). Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly, 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose, 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'” Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974)); see Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk “is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty”).

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706 (Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707-08. We determined that the ball club was “bound to exercise reasonable care” to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided enough screened-in seating “for the most dangerous part of the grand stand.” Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 88 N.W.2d 94 (Minn. 1958), that a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with “a reasonable opportunity to view the participants from a safe area.” Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim, 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck, 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated that “[a]ny person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.” Id. at 455.[2]

We applied the doctrine to recreational figure skating in Moe v. Steenberg, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff” ‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo.Ct.App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121-22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.[3] To do so would relieve skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.[4] See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99 (Colo. 2016); Blackburn v. Dorta, 348 So.2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132-33 (La. 1988); Wilson v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905-06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 387 S.E.2d 511, 517-19 ( W.Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278, 1281-84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.[5]

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling,” ‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role-limited as it may be-for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied, [6] erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court of appeals’ disposition-reversal and remand-on a different ground.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.

———

Notes:

[1] Riding a snowboard “regular” means that the rider’s left foot is in the front of the snowboard, the rider’s right foot is in the back, and the rider is facing right. Riding “goofy” means that the rider’s right foot is in the front, the rider’s left foot is in the back, and the rider is facing left.

[2] In Diker v. City of St. Louis Park, 130 N.W.2d 113, 118 (Minn. 1964), and citing Modec, we stated the general rule of assumption of risk in hockey, but did not apply the rule to “a boy only 10 years of age.”

[3] In Peterson, the court of appeals affirmed the decision of the district court, which granted summary judgment to a defendant on the plaintiff’s negligence claim stemming from a collision between the two on a ski hill. 733 N.W.2d at 791. Based on other decisions in which “courts have applied primary assumption of the risk to actions between sporting participants,” the court of appeals held that “primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.” Id. at 792-93.

[4] That reluctance is also reflected in another case decided today, Henson v. Uptown Drink, LLC, N.W.2d (Minn. Jan. 23, 2019), in which we decline to extend the doctrine of implied primary assumption of risk to the operation and patronage of bars.

[5] Spirit Mountain (like many ski operators) relies on the doctrine of express primary assumption of risk. It requires patrons to execute forms and wear lift tickets whereby patrons expressly assume all risks of injury and release their legal rights.

[6] Based on our decision here, the court of appeals’ decision in Peterson, 733 N.W.2d 790, holding that implied primary assumption of risk applies to collisions between skiers, is overruled.

 


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

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

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

Supreme Court No. S-16422, No. 1669

Supreme Court of Alaska

2018 Alas. LEXIS 31

March 21, 2018, Decided

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

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

CASE SUMMARY

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

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

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

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

OPINION

MEMORANDUM OPINION AND JUDGMENT*

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* Entered under Alaska Appellate Rule 214.

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I. INTRODUCTION

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

II. FACTS AND PROCEEDINGS

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

A. The Release

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

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

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

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

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

B. The Rafting Trip

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

C. Legal Proceedings

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

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

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

III. STANDARD OF REVIEW

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

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

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IV. DISCUSSION

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

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4 AS 09.65.290(c).

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

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

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

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

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

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

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

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

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

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

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13 Id. at 348.14 Id. at 349.15 Id.

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B. The Release Uses The Word “Negligence.”

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

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

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

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

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Here, the Release reads, in relevant part:

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

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

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

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

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

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20 Id. at 348.

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

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

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

D. The Release Does Not Violate Public Policy.

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

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23 Id. at 348.

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

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

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

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

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

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

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

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

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

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

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

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

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33 Id.

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

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34 Id. at 352.

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

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

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

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38 Id. at 963-64.

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

V. CONCLUSION

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

DISSENT BY: WINFREE

DISSENT

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

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

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

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

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

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

– – – – – – – – – – – – – – 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).

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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.

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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.

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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).

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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.

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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.

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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.


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

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

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

State: Wyoming

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

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

Plaintiff Claims: Negligence, Punitive damages

Defendant Defenses: Wyoming’s Recreation Safety Act

Holding: Mixed, mostly for the plaintiff

Year: 2009

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Third, they assert that federal law preempts the Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Punitive damages in Wyoming are:

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

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

So Now What?

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

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

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

What do you think? Leave a comment.

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A fly-fishing lawsuit, a first.

Montana Federal Court covers a lot of interesting legal issues for the OR industry in this decision. However, defendant is in a tough position because the statutes provide no help, he can’t use a release and probably like most fly-fishing guides; he believes he won’t be sued.

McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

State: Montana

Plaintiff: Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, and Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin

Defendant: James Yeager d/b/a Jim Yeager Outfitters

Plaintiff Claims: negligence, negligent infliction of emotional distress, and loss of consortium

Defendant Defenses: Montana Recreation Responsibility Act

Holding: Split, mostly for the defendant

Year: 2018

Summary

At the end of a float fly fishing trip, the boat hit a rock throwing the deceased into the river. While attempting to get the deceased back in the boat the deceased partner fell in. The deceased yelled to grab her because she could not swim. The defendant grabbed the girlfriend and maneuvered the boat through rapids.

The deceased drowned, (supposedly). Neither were wearing PFDs.

Facts

Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.

McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.

On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.

McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.

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

Only the legal issues affecting fly fishing or the outdoor industry will be reviewed. This decision is a result of both parties filing motions for summary judgment, so there is no chronological hierarchy of how the decision is written. Each motion is tackled by the judge in the order to make the following arguments more manageable.

A few things to remember. Montana does not allow an outfitter or guide to use a release. See Montana Statutes Prohibits Use of a Release.

Both parties filed motions concerning the Montana Recreation Responsibility Act (MRRA). The MRRA is similar to the Wyoming Recreational Safety Act, both of which are solely assumption of the risk statutes and weak overall. The plaintiff argued the MRRA was unconstitutional on several grounds, all of which were denied. The defendant argued the MRRA should bar the plaintiff’s claims which were also denied.

The first issue was inherent risks under the MRRA are not defined per activity or in general.

Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented by the use of reasonable care. Mont. Code Ann. § 27-1-752(2).

This leaves a monstrous gap in the protection it affords, in fact, does not afford outfitters and guides in Montana any real protection.

The court did not agree that the MRRA was broad enough to protect the defendant in this case.

Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.

Because there was a genuine issue of material fact (a mix of plausible opinions) the MRRA was not broad or strong enough to stop the plaintiff’s claims and the defendant’s motion failed.

The plaintiff argued the MRRA was void because it was vague, it did not define inherent risk.

The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” The Montana Supreme Court has similarly declared that a statute is unconstitutionally vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” “[P]erfect clarity and precise guidance are not required.” A statute is not vague “simply because it can be dissected or subject to different interpretations.”

The plaintiff also argued that because the MRRA did not define risk that it was void.

A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning.

The plaintiff argued they should be able to sue for negligent infliction of emotional distress (“NEID”).

To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” The question of whether the threshold level of emotional dis-tress can be found is for the Court to determine. (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”).

In Feller, the Montana Supreme Court considered several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plain-tiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional dis-tress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event.

The plaintiff also argued they should be able to sue for loss of consortium.

Montana law recognizes loss of consortium claims by an adult child of an injured parent. In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.”

In establishing a loss of parental consortium claim, the plaintiff may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.”

The court then looked at the issue of abnormally dangerous. A finding of that an activity is abnormally dangerous brings more damages and fewer requirements to prove part of the negligence of the defendant.

“Whether an activity is abnormally dangerous is a question of law.” No court has held float fly fishing is an abnormally dangerous activity, and this Court declines Plaintiffs’ invitation to be the first to do so.

So Now What?

A statute that protects defendants based on assumption of the risk does so because it identifies specific risk and broadens the definitions of what an inherent risk is. An example would be the Colorado Skier Safety Act. That act describes the inherent risk of skiing and then adds dozens of more risk, which are beyond the normal scope of inherent.

Both the MRRA and the Wyoming Recreational Safety Act statutorily defines the common law but does nothing to broaden or strengthen the common law. They could better be defined as politically pandering, an attempt by a politician to make constituents feel better by giving them something, which, in reality, has no value.

The fly-fishing outfitter was caught in Montana’s lack of available defenses, no statutory protection and no availability of a release. He might be able to strengthen his defenses by having his clients sign an Assumption of the Risk Document. He also might offer them PFDs.

Furthermore, remember in most whitewater or cold-water deaths drowning is not the cause of the death. Most people die of a heart attack. risk or Wikipedia: Cold Shock Response.

What do you think? Leave a comment.

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

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

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

Case No. 08-CV-139-J

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

2009 U.S. Dist. LEXIS 139788

October 1, 2009, Filed

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

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

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

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

OPINION BY: ALAN B. JOHNSON

OPINION

ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

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

FACTS

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

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

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

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

DISCUSSION

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

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

Choice of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recreation Safety Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wyo. Stat. Ann. § 1-1-123.

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

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

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

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

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

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

Id. at 1168-69.

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

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

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

Negligence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Joint Venture

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

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

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

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

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

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

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

Fraud

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

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

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

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

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

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

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

Punitive Damages

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

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

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

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

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

Plaintiffs reason as follows:

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

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

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

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

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

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

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

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

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

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

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

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

Dated this day of October, 2009.

/s/ Alan B. [*42] Johnson

ALAN B. JOHNSON

UNITED STATES DISTRICT JUDGE


McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

Charles P. Mcjunkin, deceased, by and through his executor and personal representative, Rhett Mcjunkin, and Rhett Mcjunkin, executor and personal representative, on behalf of the heirs of Charles P. Mcjunkin, Plaintiffs, vs. James Yeager d/b/a Jim Yeager Outfitters, Defendant.

CV 17-12-BLG-TJC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BILLINGS DIVISION

2018 U.S. Dist. LEXIS 169321

September 28, 2018, Decided

September 28, 2018, Filed

COUNSEL: [*1] For Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin, Plaintiffs: Philip L. McGrady, LEAD ATTORNEY, McGRADY LAW, Whitefish, MT.

For James Yeager, doing business as, Jim Yeager Outfitters, Defendant: Ross Daniel Tillman, LEAD ATTORNEY, John M. Newman, BOONE KARLBERG, P.C., Missoula, MT.

JUDGES: TIMOTHY J. CAVAN, United States Magistrate Judge.

OPINION BY: TIMOTHY J. CAVAN

OPINION

ORDER

Rhett McJunkin, as personal representative of the estate of Charles P. McJunkin, and on behalf of the heirs of Charles P. McJunkin (“Plaintiffs”), brings this action against Defendant James Yeager, doing business as Jim Yeager Outfitters (“Yeager” or “Defendant”), in relation to a fatal boating accident that occurred on the Stillwater River near Columbus, Montana. Plaintiffs assert claims for negligence, negligent infliction of emotional distress, and loss of consortium. (Doc. 1.)

Presently before the Court are Plaintiffs’ Motion to Amend the Complaint (Doc. 23), Plaintiffs’ Motion for Partial Summary Judgment Regarding the Constitutionality of the Montana Recreation Responsibility Act [*2] (Doc. 28), and Defendant’s Motion for Summary Judgment (Doc. 31). The motions are fully briefed and ripe for the Court’s review.

Having considered the parties’ submissions, the Court finds Plaintiffs’ Motion to Amend should be DENIED, Plaintiff’s Motion for Partial Summary Judgment should be DENIED, and Defendants’ Motion for Summary Judgment should be GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND1

1 The background facts set forth here are relevant to the Court’s determination of the pending motions for summary judgment and are taken from the parties’ submissions and are undisputed except where indicated.

Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin (“McJunkin”), on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.

McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set [*3] of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.

On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.

McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs [*4] contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

[HN1] Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Material facts are those which may 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 as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

[HN2] The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine [*5] issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

[HN3] If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party must “go beyond the pleadings and by ‘the depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). The opposing party cannot defeat summary judgment merely by demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of the [*6] nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 252).

III. DISCUSSION

A. Cross-Motions for Summary Judgment Related to the Montana Recreation Responsibility Act

Plaintiffs assert Yeager’s negligence caused McJunkin’s death. Yeager contends Plaintiffs’ negligence claim fails as a matter of law because it is barred by Montana’s Recreation Responsibility Act (the “MRRA”), Mont. Code Ann. § 27-1-751, et seq. Thus, Yeager argues summary judgment on the negligence claim is warranted.

Plaintiffs counter that the MRRA is unconstitutionally vague, and violates the constitutional guarantee of equal protection and right to full legal redress. Plaintiffs, therefore, move for partial summary judgment declaring the MRRA unconstitutional. Plaintiffs further assert that even if the MRRA is constitutional, there are genuine issues of material fact which preclude summary judgment.

1. Yeager’s Motion for Summary Judgment under the MRRA

[HN4] The MRRA limits the liability of recreational opportunity providers for injuries resulting from the inherent risks of sports or recreational opportunities.2 Specifically, the MRRA provides in relevant part:

(1) A person who participates in any sport or recreational opportunity assumes the inherent risks in [*7] that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person’s property that result from the inherent risks in that sport or recreational opportunity.

(2) A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.

(3)(a) Sections 27-1-751 through 27-1-754 do not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity.

Mont. Code. Ann. § 27-1-753.

2 “Sport or recreational opportunity” is defined broadly in the MRRA as “any sporting activity, whether undertaken with or without permission, include but not limited to baseball, softball, football, soccer, basketball, bicycling, hiking, swimming, boating, hockey, dude ranching, nordic or alpine skiing, snowboarding, snow sliding, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, target shooting, hunting, fishing, backcountry trips, horseback riding and other equine activity, snowmobiling, off-highway vehicle use, agritourism, an on-farm educational opportunity, and any similar recreational activity.” Mont. Code. Ann. § 27-1-752(4).

The MRRA defines “Inherent risks” as:

[T]hose dangers or conditions that are characteristic of, intrinsic to, or an integral part of any sport or recreational activity and that cannot be prevented by the use of reasonable care.

Mont. Code Ann. § 27-1-752(2).

[HN5] When interpreting a statute, a court is required to look to the plain meaning of the words. Clarke v. Massey, 271 Mont. 412, 897 P.2d 1085, 1088 (1995). A court will only resort to the legislative history of a statute if the legislative intent cannot be determined from the statute’s plain wording. Id. “[T]he office of judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert [*8] what has been omitted or to omit what has been inserted.” Mont. Code Ann. § 1-2-101.

Yeager maintains that the statute has a simple, straight-forward application to the facts of this case. He argues McJunkin’s death was caused by drowning; falling out of a boat and drowning is an inherent risk of fishing from a raft; therefore, Plaintiffs’ negligence claim is barred under the MRRA as a matter of law. In short, Yeager asserts because the injury in this case involved drowning while fishing from a raft, the MRRA precludes Plaintiffs’ claim. (Doc. 32 at 15.)

Yeager reads the MRRA much too broadly. Construing the statute in this fashion would immunize providers of recreational activities from their own negligence. The Court finds that such a construction would be contrary to the statute’s plain words, the legislative intent in enacting the legislation, and would likely render the MRRA unconstitutional.

[HN6] Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented [*9] by the use of reasonable care. Mont. Code Ann. § 27-1-752(2). Therefore, the MRRA does not insulate a provider from all risks which are characteristic of, or intrinsic to the activity. It only provides protection for those risks which cannot be prevented with the use of reasonable care. In order to make this determination, it is necessary to look at the facts and circumstances of each case and the specific risk or condition involved.

Wyoming has a similar “Recreation Safety Act.” Wyo. Stat. Ann. §§ 1-1-121 through 1-1-123. Like the MRRA, the Wyoming Act provides that “[a]ny person who takes part in any sport or recreational opportunity assumes the inherent risk in that sport or recreational opportunity, whether those risks are known or unknown . . . .” Wyo. Stat. Ann. § 1-1-123(a). It also similarly states that a provider of the “recreational opportunity is not required to eliminate, alter, or control the inherent risks” of the activity. Wyo. Stat. Ann. § 1-1-123(b). One critical difference between the two acts, however, is the definition of an inherent risk. The MRRA and the Wyoming Act both define inherent risk to mean “those dangers or conditions which are characteristic of, intrinsic to, or an integral part” of the activity. Wyo. Stat. Ann. § 1-1-122(a)(i). But the Wyoming Act’s definition does not also include the MRRA’s requirement [*10] that the risk “cannot be prevented by the use of reasonable care.”

Nevertheless, the construction of the Wyoming Act is instructive as far as the similarities go. Courts which have construed and applied the Wyoming statute have rejected the broad, general interpretation advanced by Yeager in this case. To determine what risks are inherent, decisions under the Wyoming Act have consistently required that a court “go beyond a broad characterization and inquire into the specific circumstances of both [the plaintiff’s] actions and those of the recreation provider.” Creel v. L & L, Inc., 2012 WY 124, 287 P.3d 729, 736 (Wyo. 2012).

In Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000), for example, the plaintiff was injured during a guided horseback trail ride. The injury occurred when the plaintiff’s saddle slipped around to the belly of the horse, causing the plaintiff to fall to the ground. The defendant moved for summary judgment under the Wyoming Recreation Safety Act, arguing that a slipping saddle is an inherent risk of horseback riding. In determining the application of the Act, the Tenth Circuit made clear that the risk in question must be not be evaluated broadly or generally, but in the context of the specific factual setting presented.

Horseback riding undoubtedly carries some inherent risk [*11] that the rider will fall off the horse and get injured. A horse could stumble on an uneven path, or rear, or simply begin to gallop for no apparent reason. All of these risks clearly would qualify as inherent risks of horseback riding. Simply because some risks are inherent in horseback riding, however, does not mean that all risks of falling from a horse are necessarily inherent; instead, it is necessary to look factually at the specific risk to which the rider was exposed. When attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the rider was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record. See Madsen, 31 F.Supp.2d at 1328 (“The Court believes that one must look to the specific facts of a case to see whether there is a duty, and not simply look to the abstract character of the risk.”).

Cooperman, 214 F.3d at 1167.

The same evaluation must be conducted under the MRRA. It is not enough to find that falling out of a boat and drowning is a general risk of fishing from a raft; therefore, drowning is an inherent risk in fishing. Although there may be circumstances where the risk of drowning [*12] cannot be prevented with the use of reasonable care, it is undoubtedly true the risk may be prevented in many other circumstances.

Therefore, each case must be examined in light of the specific factual context of the case to determine whether the specific risk involved could have been prevented using reasonable care. As the Wyoming Supreme Court points out, “[s]ome risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks.” Dunbar v. Jackson Hole Mtn. Resort Corp., 392 F.3d 1145, 1148–49 (10th Cir.2004).

In addition, Yeager’s broad interpretation of the MRRA would effectively immunize providers of a recreational opportunity from their own negligence. If providers were protected from all fishing-related drownings under the MRRA, they would be relieved of liability where the death was caused by negligence, or even by willful or wanton misconduct. For example, it would apply not only to situations where a participant falls out of a raft and drowns without negligent conduct by the provider; it would [*13] also apply where the provider negligently causes a raft to collide with a bridge abutment or other known obstruction in the river.

Such an application would be contrary to the legislative intent of the MRRA, which expressly provides that the Act does not “preclude an action based on the negligence of the provider. . . .” Mont. Code Ann. § 27-1-753. As recognized under the Wyoming Act, the “intent behind the Recreation Safety Act was not to preclude parties from suing for a provider’s negligence, it was merely to stop people from suing providers for those risks that were inherent to a sport.” Madsen v. Wyoming River Trips, 31 F.Supp.2d 1321, 1328 (D. Wyo. 1999).

Finally, construing the MRRA as Yeager urges would likely render the Act unconstitutional. [HN7] Statutes should be construed “to avoid an unconstitutional interpretation if possible.” Hernandez v. Bd. of Cty. Comm’rs, 2008 MT 251, 345 Mont. 1, 189 P.3d 638, 642 (Mont. 2008). The Montana Supreme Court found a prior version of Montana’s Skier Responsibility Act unconstitutional because it prohibited a skier “from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator.”3
Brewer v. Ski-Lift, Inc., 234 Mont. 109, 762 P.2d 226, 230 (Mont. 1988). The Court found that although the state had a legitimate interest in protecting the economic vitality of the ski industry, there was no rational relationship [*14] between that purpose and requiring that skiers assume all risks for injuries regardless of the presence of negligence by the ski area operator. Id. at 230. See also, Oberson v. U.S. Dept. of Ag., Forest Serv., 2007 MT 293, 339 Mont. 519, 171 P.3d 715 (Mont. 2007) (snowmobile liability statute’s gross negligence standard, which relieved snowmobile operators from their negligent conduct, violated equal protection).

3 The statute at issue in Brewer barred recovery from a ski area operator if the skier suffered an injury resulting “from participating in the sport of skiing.” Brewer, 762 P.2d at 229 (citing Mont. Code Ann. § 23-2-736(1)).

The purpose of the MRRA is substantially the same as the skier and snowmobile liability statutes — protection of providers of recreational activities from liability for risks over which the provider has no control. Under Yeager’s interpretation of the MRRA, providers of float fly fishing would be immune from liability for drownings, even when caused by the provider’s own negligence. Under Brewer and Oberson, such a construction would violate Plaintiffs’ rights to equal protection, due process, and access to the courts.

Therefore, whether the MRRA protects a provider of recreational opportunities from certain risks cannot be determined by looking at the broad, abstract character of the risk. Instead, the specific facts and circumstances in each case must be examined to determine whether the risk involved can be prevented by the use of reasonable care. If so, the MRRA does not [*15] shield the provider from liability.

That being established, the determination of whether McJunkin’s drowning resulted from an inherent risk of floating and fly fishing is not appropriate for summary judgment. While there may be cases where there are no genuine issue of material fact, and the issue may be appropriately decided as a matter of law, [HN8] the determination of whether a risk is an inherent risk is generally a factual determination for the jury to decide. See e.g. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788-89 (Mont. 1994) (holding whether an inherent risk had been established under the Skier Responsibility Act was a question of fact to be resolved by the trier of fact); Cooperman, 214 F.3d at 1169 (noting the question of what is an inherent risk is normally a question of fact for the jury); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995) (“when genuine issues of material fact exist, it is proper to present the issue to the jury of whether a risk is inherent to a particular activity.”).4

4 At the time the Halpern case was decided, the Wyoming Act’s definition of inherent risk was similar to the MRRA. It was defined as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Halpern, 890 P.2d at 564. The highlighted portion of the definition was subsequently removed by the Wyoming legislature.

Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning [*16] is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.

Accordingly, the Court finds there are genuine issues of material fact regarding whether the risks encountered by McJunkin could have been prevented by the use of reasonable care.

As such, Yeager’s Motion for Summary Judgment is DENIED as to Count I of the Complaint.

2. Plaintiffs’ Motion for Summary Judgment

McJunkin challenges the constitutionality of the MRRA on due process and equal protection grounds. [HN9] Statutes are presumed to be constitutional, and “the party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt.” Globe v. Montana State Fund, 2014 MT 99, 374 Mont. 453, 325 P.3d 1211, 1216 (Mont. 2014). “‘The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action . . . .'” Davis v. Union Pac. R. Co., 282 Mont. 233, 937 P.2d 27, 31 (1997) (quoting Fallon County v. State 231 Mont. 443, 753 P.2d 338, 340 (Mont. 1988). “[E]very [*17] possible presumption must be indulged in favor of the constitutionality of the Act.” Id. Thus, courts “will construe a statute to further, rather than to frustrate, the Legislature’s intent according to the plain meaning of the statute’s language.” In re Custody and Parental Rights of D.S., 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). See also Hernandez, 189 P.3d at 642 (stating it is the court’s duty “to avoid an unconstitutional interpretation if possible”).

a. The MRRA is not Unconstitutionally Vague

Plaintiffs argue the MRRA is unconstitutionally vague on its face, and as applied. Plaintiffs contend the MRRA purports to limit liability for injuries that result from inherent risks, but it does not define “inherent risk” in any clear manner. Thus, Plaintiffs argue there is no fair way to apply the statute because it is unclear what constitutes an “inherent risk.”

[HN10] The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967). The Montana Supreme Court has similarly declared that a statute is unconstitutionally [*18] vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” In re Custody, 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). “[P]erfect clarity and precise guidance are not required.” Id. A statute is not vague “simply because it can be dissected or subject to different interpretations.” Montana Media, Inc. v. Flathead Cty., 2003 MT 23, 314 Mont. 121, 63 P.3d 1129, 1140 (Mont. 2003).

Here, the Court finds the MRRA is not unconstitutionally vague on its face. Section 27-1-752(2) plainly provides a standard for assessing what constitutes an “inherent risk.” The standard is established with common, readily-understood terms, and it incorporates the familiar negligence standard of reasonable care. Mont. Code Ann. § 27-1-752(2).

Further, contrary to Plaintiffs’ argument, the fact the MRRA does not specifically enumerate the risks inherent in each of the 30 recreational activities listed in the statute does not make the Act unconstitutional. [HN11] The Montana Supreme Court has recognized that even if a term in a statute is not exhaustively defined, and allows the court some discretion in determining whether the evidence presented satisfies the statute, the statute will not be rendered unconstitutionally vague. See In re Custody, 122 P.3d at 1243 (holding that although § 41-3-423(2)(a) did not contain an exhaustive list of conduct that constitutes the term “aggravated circumstances,” [*19] the statute was not void for vagueness). Moreover, even the more specific recreational liability statutes that Plaintiffs uses for comparison, provide non-exclusive lists of inherent risks. See e.g. Mont. Code Ann. § 23-2-702(2) (“‘Inherent dangers and risks of skiing’ means those dangers or conditions that are part of the sport of skiing, including: . . .”); § 23-2-822(2) (“Risks inherent in the sport of off-highway vehicle operation include . . .”); § 27-1-726(7) (“‘Risks inherent in equine activities’ means dangers or conditions that are an integral part of equine activities, including but not limited to: . . .”).

The Court further finds the MRRA is not unconstitutionally vague as applied. A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning. Therefore, McJunkin could have understood that the MRRA may limit Yeager’s liability for accidents on the river.

Accordingly, the Court finds the MRRA is not [*20] void for vagueness.

b. The MRRA Does Not Violate the Constitutional Guarantee of Equal Protection

Plaintiffs also argue the MRRA violates the constitutional guarantee of equal protection in two ways. First, Plaintiffs assert the Act eliminates any theory of negligence on the part of recreational providers, essentially excusing them from the consequences of their own negligence. Second, Plaintiffs argue the MRRA arbitrarily treats certain groups of recreationalists differently. Plaintiffs assert that participants in activities covered by the MRRA are treated differently from those participating in activities covered under other activity-specific recreation statutes because the MRRA is vague, whereas the other statutes are not. Plaintiffs further assert the MRRA treats recreationists covered by the Act differently because the MRRA attempts to resurrect the “secondary” assumption of risk defense, and inserts a “primary” assumption of risk defense.

i. The MRRA Does not Eliminate All Theories of Negligence

As discussed above, although a provider is not liable for, or required to eliminate, alter, or control inherent risks under the MRRA, the provider still owes a duty of care for risks that [*21] can be prevented by the use of reasonable care. Thus, the Court finds the MRRA continues to permit negligence claims against a provider if the risk could have been prevented by the use of reasonable care. Thus, the MRRA does not violate Plaintiffs’ equal protection rights by immunizing providers from their own negligence.

ii. The MRRA Does Not Arbitrarily Treat Groups of Recreationists Differently

The MRRA is drawn broadly and defines “sport or recreational opportunity” by reference to a non-exhaustive list of 30 activities. Mont. Code. Ann. § 27-1-752(4). Some of the listed activities are also covered by their own activity-specific recreation liability statutes, such as skiing, snowmobiling and off-road vehicle use. Id.; §§ 23-2-651, et seq.; 23-2-702, et seq.; 23-2-822. Therefore, the MRRA goes on to exclude those activities from its scope. Mont. Code Ann § 27-1-754 (stating the MRRA does “not apply to duties, responsibilities, liability, or immunity related to” activities that are already subject to an activity-specific recreational statute).

Plaintiffs assert that this statutory scheme causes different groups of recreationists to be treated differently. Specifically, Plaintiffs assert the recreationists who fall under the MRRA are disadvantaged in several [*22] respects.

First, Plaintiffs argue the MRRA’s alleged vagueness only affects the subset of recreationists who participate in activities covered by the Act. Whereas, recreationists engaging in other sports, such as skiing or snowmobiling, have specific notice of their rights and the provider’s responsibilities. The Court has determined, however, that the MRRA is not unconstitutionally vague. Further, as noted above, even the activity-specific recreation statutes that specifically identify certain inherent risks do so in a non-exhaustive fashion. Thus, there is no significant difference in treatment between the recreationists who fall under the MRRA, and those who fall under other recreational statutes with respect to notice.

Next, Plaintiffs assert the MRRA departs from other recreational statutes by attempting to revive the “secondary” assumption of risk defense and by suggesting a “primary” assumption of risk defense. Historically, Montana has not used the terms “primary” and “secondary” assumption of risk. Nevertheless, legal commentators have explained [HN12] “primary” assumption of risk refers to the concept of duty, and “secondary” assumption of risk refers to contributory negligence.
[*23] See Dan B. Dobbs, et al., Dobbs’ Law of Torts § 238 (2d ed. 2018) (“[T]he term ‘primary assumption of risk’ is used to indicate the no-duty or no-breach conception and its attendant complete-bar effect; and the term ‘secondary assumption of risk’ is used to indicate the contributory negligence conception.”); 65A C.J.S. Negligence § 398 (2018) (“Primary assumption of risk limits the duty which a person owes to another. Secondary assumption of risk, on the other hand, which is a type of contributory negligence and is an affirmative defense, may be raised by the defendant after the plaintiff has met the burden of showing that the defendant breached a legal duty owed to the plaintiff.”); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, 480-81 (5th Ed. 1984) (stating “primary” assumption of risk “is really a principle of no duty,” and explaining that under the duty perspective, “the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation . . . the legal result is that the defendant is simply relieved of the duty which would otherwise exist.”).

With regard to [*24] “secondary” assumption of risk, Plaintiffs assert the MRRA, “unlike any other recreation act in Montana,” resurrects the “secondary” assumption of risk defense, without articulating any specific inherent risks the participant would be assuming. (Doc. 29 at 15.) As Yeager points out, however, the MRRA is in fact similar to the other recreation statutes in that they also provide that the participant assumes the risks inherent in the particular activity. See e.g. Mont. Code Ann. § 23-2-736(4) (“A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing.”); § 23-2-822 (1) (“An off-highway vehicle operator shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of off-highway vehicle use. . . .”); 23-2-654(3) (“A snowmobiler shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of snowmobiling.”). Further, as discussed in regard to Plaintiff’s vagueness challenge, the MRRA does not fail to put participants on notice of the inherent [*25] risks they are assuming. As such, recreationists participating in activities that fall under the MRRA are not on significantly different legal footing than participants in other recreational activities. Finally, Plaintiffs contend the MRRA’s suggestion of a “primary” assumption of risk defense amounts to an end-run around comparative negligence. As used here, the assumption of risk terminology in the MRRA refers to a principle of no duty. In Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), the Wyoming Supreme Court found the assumption of risk language in the Wyoming Recreation Safety Act, “was intended to limit the duty to which a provider owes to a participant.” The Court explained that because primary assumption of risk was only intended to limit the provider’s duty, it did not affect the comparative negligence scheme. Id. Likewise, here, the Court finds the assumption of risk language in the MRRA affects only the provider’s duty. It does not revive contributory negligence or undermine Montana’s comparative negligence law. Moreover, as noted, the other activity-specific recreation statutes contain similar assumption of risk language. Thus, recreationists are treated the same under both the MRRA and other activity-specific recreation [*26] statutes, and there is no violation of equal protection.

c. The MRRA Does Not Unconstitutionally Interfere With the Right to Trial by Jury

Finally, Plaintiffs argue the MRRA infringes upon the province of the jury by injecting questions of ultimate fact into preliminary legal questions. As discussed above, however, whether McJunkin’s death was the result of an inherent risk of float fly fishing, and whether it could have been prevented by the use of reasonable care, are jury questions. Thus, the Court finds the MRRA does not unconstitutionally interfere with Plaintiffs’ fundamental right to trial by jury.

B. Yeager’s Motion for Summary Judgment on Plaintiffs’ Negligent Infliction of Emotional Distress Claim

Yeager contends Plaintiffs’ claim for negligent infliction of emotional distress (“NEID”) fails as a matter of law because there is insufficient evidence for a jury to find Plaintiffs suffered serious or severe emotional distress.5 The Court agrees.

5 Yeager also asserts Plaintiffs’ NIED claim fails because there is no actionable predicate act of negligence since the MRRA bars Plaintiffs’ negligence claim. As discussed, however, the Court has found there are disputed issues of material fact regarding Plaintiff’s negligence claim. Accordingly, Yeager’s argument fails in this regard.

[HN13] Under Montana law, an independent cause of action for NIED arises “under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant’s negligent act or omission.” Sacco v. High Country Ind. Press, Inc., 271 Mont. 209, 896 P.2d 411, 426 (Mont. 1995). [*27] “To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” Feller v. First Interstate Bancsystem, Inc., 2013 MT 90, 369 Mont. 444, 299 P.3d 338, 344 (Mont. 2013). The question of whether the threshold level of emotional distress can be found is for the Court to determine. Sacco, 896 P.2d at 425 (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”) (quoting Restatement (Second) of Torts, § 46, comment j at 78).

In Feller, the Montana Supreme Court considered [HN14] several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plaintiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional distress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event. Feller, 299 P.3d at 345.

Here, the Court finds [*28] Plaintiffs have not presented evidence of the type of emotional distress necessary to demonstrate serious or severe compensable emotional distress. Rhett McJunkin and Charles McJunkin, Jr. testified at deposition that they have both experienced grief, trouble sleeping and have had nightmares. Rhett McJunkin also testified he took sleep medication approximately one year after the accident, but could not recall what the medication was, who prescribed the medication, or how long own long it was taken. Rhett McJunkin also stated he has also experienced “angst” and “anxiety,” and Charles McJunkin, Jr. indicated his focus has been affected.

Nevertheless, there is no indication of any physical manifestation of grief, and neither has sought counseling, taken or increased medication to manage their emotional distress, have suffered a loss of appetite, are unable to maintain close family relationships, and neither witnessed the accident. The Court finds that consideration of the Feller factors does not lead to the conclusion that Plaintiffs’ emotional distress rises to the level where severe emotional distress may be found.

The Court certainly sympathizes with Plaintiffs’ grief for their loss [*29] of their father. Nevertheless, their testimony does not show their emotional distress was so severe that “no reasonable person could be expected to endure it.” Feller, 299 P.3d at 344.

Accordingly, Yeager’s Motion for Summary Judgment is GRANTED on Count II of the Complaint.

C. Yeager’s Motion for Summary Judgment on Plaintiffs’ Loss of Consortium Claim

Yeager argues Plaintiffs’ loss of consortium claim also fails as a matter of law because there is insufficient evidence to support the claim.6 The Court finds there are disputed issues of material fact that preclude summary judgment.

6 Yeager again asserts Plaintiffs’ loss of consortium claim fails because there is no actionable predicate act of negligence. As discussed, this argument is again rejected because there are disputed issues of material fact regarding Plaintiffs’ negligence claim.

[HN15] Montana law recognizes loss of consortium claims by an adult child of an injured parent. N. Pac. Ins. Co. v. Stucky, 2014 MT 299, 377 Mont. 25, 338 P.3d 56, 61 (Mont. 2014). In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test7 to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.” Id. at 66.

7 The Court adopted the two-part test from Keele v. St. Vincent Hosp. & Health Care Ctr., 258 Mont. 158, 852 P.2d 574 (Mont. 1993), which recognized parental loss of consortium claims by minor children. The Montana Supreme Court stated it found no reason to adopt a different standard for an adult child’s claim of loss of parental consortium. Stucky, 338 P.3d at 65. The Court specifically rejected adopting the more stringent “extraordinarily close and interdependent relationship” test from Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, 329 Mont. 347, 125 P.3d 597 (Mont. 2005), which applies to loss of consortium claims brought by the parent of an adult child.

[HN16] In establishing a loss of parental consortium claim, the plaintiff [*30] may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.” Id.

Stucky involved an injury to a parent, rather than the death of a parent. Nevertheless, an adult child’s loss of a parent would readily meet the requirements established in Stucky for the maintenance of a consortium claim. The fact McJunkin died is sufficient to establish the first prong of the test, which requires serious permanent injury. Second, death is obviously an injury so “overwhelming and severe” as to destroy the parent-child relationship. Thus, the second prong of the test is clearly established.

Yeager points out that Plaintiffs are in their late 50’s/early 60’s, they lived hundreds of miles away from their father, received no financial support from him, and saw him only occasionally. Plaintiffs counter that they had [*31] a tight bond with their father, and that Charles McJunkin, Jr. talked to his father on a regular basis. This is evidence for the jury to assess. Stucky, 338 P.3d at 65.

Accordingly, the Court finds there are disputed issues of material fact that preclude summary judgment on Plaintiffs’ loss of consortium claim. Yeager’s Motion for Summary Judgment as to Count III of the Complaint is therefore, DENIED.

III. MOTION TO AMEND COMPLAINT

Plaintiffs have also filed a Motion to Amend the Complaint. (Doc. 23.) Plaintiffs seek to add a new theory of liability to the existing negligence claim. In particular, Plaintiffs seek to add the theory of strict liability based upon an abnormally dangerous activity. Yeager opposes the motion, arguing Plaintiffs were not diligent in moving to amend, and the proposed amendment is futile.

On June 1, 2017, the Court issued a Scheduling order setting the deadline to amend pleadings for July 3, 2017. (Doc. 20.) Plaintiffs filed the instant motion seeking leave to amend on November 29, 2017. (Doc. 23.)

[HN17] In situations where the deadline for amendments to pleadings has passed, a party must show good cause for not seeking leave to amend within the Court’s scheduling order. Fed.R.Civ.P. 16(b)(4) (“[a] schedule may [*32] only be modified for good cause and with the judge’s consent”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Ninth Circuit explained that “[u]nlike Rule 15(a)’s liberal [HN18] amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Good cause to excuse noncompliance with the scheduling order exists if the pretrial schedule “cannot reasonably be met despite the diligence of the party seeking the extension.” Id. (quoting Fed. R. Civ. P. 16 Advisory Committee’s Notes (1983 Amendment)).

Prejudice to the opposing party may provide an additional reason to deny a motion to amend, but “the focus of the inquiry is upon the moving party’s reasons for seeking modification.” Id. at 609. “If that party was not diligent, the inquiry should end.” Id.; see also In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013) (upholding denial of motion to amend where “the party seeking to modify the scheduling order has been aware of the facts and theories supporting amendment since the inception of the action”).

[HN19] If good cause exists for seeking amendment after the scheduling order’s deadline, the Court then turns to Rule 15(a) to determine whether amendment should be allowed. [*33] “Although Federal Rule of Civil Procedure 15(a) provides that leave to amend ‘shall be freely given when justice so requires,’ it ‘is not to be granted automatically.'” In re Western States, 715 F.3d at 738 (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990)). Under Rule 15(a), the Ninth Circuit directs that courts consider the following five factors to assess whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.” Id. Each of these factors is not given equal weight, however. “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

A. Lack of Diligence

As noted above, Plaintiffs seek to amend the Complaint to include an additional theory of strict liability. The Court finds that Plaintiffs did not act diligently in seeking to amend the Complaint. The motion to amend was filed nearly five months after the Court’s deadline to amend pleadings. Plaintiffs’ explanation for the delay is that the additional theory of liability is premised upon Yeager’s expert report, which they did not receive until November 13, 2017.

The Court finds, however, that Plaintiffs were aware of the facts and theories supporting the amendment long prior to receipt of [*34] Yeager’s expert report. The expert report did not provide any new facts, but rather offered opinion evidence that fly fishing from a raft is inherently dangerous, and that the danger cannot be eliminated by reasonable precautions. But Plaintiffs have been aware that Yeager intended to raise an inherent risk defense since Yeager filed his answer on March 6, 2017, and raised the MRRA as an affirmative defense. (Doc. 4 at 7.) Yeager also filed a Preliminary Pretrial Statement approximately six months before the expert report was produced that put Plaintiffs on further notice of this theory of defense. (See Doc. 18 at 6) (stating that “[f]alling out of a raft on a river is a danger that cannot be prevented by the use of reasonable care.”) Therefore, Plaintiffs’ argument that they did not possess information supporting the abnormally dangerous activity theory of liability until after they received the expert report is not persuasive. See Bonin, 59 F.3d at 845 (holding a motion to amend may be denied “where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally”).

B. Futility of Amendment

Even if the Court found “good cause,” under [*35] Rule 16, application of the Rule 15 factors dictate denial of the motion to amend. Although there is no indication Plaintiffs are acting in bad faith, or that amendment would unduly prejudice Yeager, the Court has found undue delay. Moreover, the Court finds the amendment would be futile.

In seeking to impose strict liability, Plaintiffs conflate the concept of inherent risk with an abnormally dangerous activity. The activity at issue here — fly fishing from a raft — is not the kind of activity that has been recognized as abnormally dangerous. [HN20] Simply because an activity has inherent risks, does not mean the activity is abnormally dangerous for purposes of strict liability. A comparison of activities that are considered abnormally dangerous illustrates the point. See e.g. Beckman v. Butte-Silver Bow Cty., 2000 MT 112, 299 Mont. 389, 1 P.3d 348 (Mont. 2000) (trenching); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079 (Mont. 2007) (operating a gas refinery near residences and a school); Ulmen v. Schwieger, 92 Mont. 331, 12 P.2d 856 (Mont. 1932) (highway construction); and Stepanek v. Kober Const., 191 Mont. 430, 625 P.2d 51 (Mont. 1981) (construction scaffolding). The Court does not find the characteristics and risks of fly fishing equate in any meaningful way with these types of activities.8

8 Likewise, the Restatement (Second) of Torts § 519, which has been adopted by the Montana Supreme Court, identifies the following as abnormally dangerous activities: “Water collected in quantity in unsuitable or dangerous place,” “Explosives in quantity in a dangerous place,” “Inflammable liquids in quantity in the midst of a city,” “Blasting, in the midst of a city,” “Pile driving, with abnormal risk to surroundings,” “Release into air of poisonous gas or dust,” “Drilling oil wells or operating refineries in thickly settled communities,” and “production of atomic energy.” Again, these activities are of a wholly different nature than float fly fishing.

“Whether an activity is abnormally dangerous is a question of law.” Chambers v. City of Helena, 2002 MT 142, 310 Mont. 241, 49 P.3d 587, 591 (Mont. 2002), overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134 (Mont. 2007). No court has held float fly fishing is an abnormally dangerous activity, and [*36] this Court declines Plaintiffs’ invitation to be the first to do so.

In addition, the Court has determined the MRRA is constitutional and applies to Plaintiff’s negligence claim. The MRRA limits a recreational provider’s liability. Mont. Code Ann. § 27-1-752(3); 27-1-753. The Montana Legislature enacted the MRRA to protect recreational providers from liability for injuries that are caused by the very characteristics of a particular activity that make it attractive to participants. 2009 Mt. Laws Ch. 331 (H.B. 150), preamble. The Legislature specifically intended to limit providers’ liability and to discourage claims based on damages that result from inherent risks in a sport or activity. Id. The Legislature enacted the MRRA to further the State’s interest in maintaining the economic viability of Montana’s sports and recreational industries. Id.

Imposing strict liability would eviscerate the purpose of the MRRA. Instead of limiting recreational provider’s liability for inherent risks, it would render them strictly liable for those risks. See Christian v. Atl. Richfield Co., 2015 MT 255, 380 Mont. 495, 358 P.3d 131, 150 (Mont. 2015) (“A claim based upon strict liability for the conduct of an abnormally dangerous activity . . . means that the defendant is liable for harm resulting from the activity, even [*37] if the defendant acted with reasonable care.”). In short, it would accomplish the exact opposite of what the MRRA was intended to do.

Therefore, because Plaintiffs have not shown good cause for their delay in seeking amendment, and because the amendment would be futile, Plaintiffs’ Motion to Amend the Complaint is DENIED.

IV. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows: (1) Plaintiffs’ Motion to Amend (Doc. 23) is DENIED;

(2) Plaintiffs’ Motion for Partial Summary Judgment (Doc. 28) is DENIED; and

(3) Defendant’s Motion for Summary Judgment (Doc. 31) is GRANTED in part and DENIED in part.

IT IS ORDERED.

DATED this 28th day of September, 2018.

/s/ Timothy J. Cavan

TIMOTHY J. CAVAN

United States Magistrate Judge


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

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

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

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

Plaintiff: Eden Gonzalez Hass et al

Defendant: Rhodyco Productions

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

Defendant Defenses: Release and Primary Assumption of the Risk

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

Year: 2018

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

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

What do you think? Leave a comment.

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

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

Hass v. RhodyCo Productions

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

August 13, 2018, Opinion Filed

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

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

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

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

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

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

Opinion by: Reardon, J.

Opinion

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

I. FACTUAL AND PROCEDURAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

II. DISCUSSION

A. Standard of Review

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

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

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

B. Express Waiver

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

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

1. Waiver of Wrongful Death Claim

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

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

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

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

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

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

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

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

2. Public Policy

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

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

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

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

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

3. Gross Negligence

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

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

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

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

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

C. Primary Assumption of the Risk

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

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

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

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

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

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

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

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

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

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

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

III. DISPOSITION

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

REARDON, J.

We concur:

STREETER, Acting P. J.

SMITH, J.*


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

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

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

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

Plaintiff: Meghan McDonald

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: negligence,

Defendant Defenses: Release and Assumption of the Risk

Holding: for the Plaintiff

Year: 2016

Summary

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

What do you think? Leave a comment.

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

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

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

503314/12

SUPREME COURT OF NEW YORK, KINGS COUNTY

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

April 12, 2016, Decided

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

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

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

OPINION BY: MARK I. PARTNOW

OPINION

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

[**2] Background

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

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

Brooklyn Boulders’ Motion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: And were they climbing around you.

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

Q: And were you supervising them?

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

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

A: A few of them were watching me yeah.

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

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

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

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

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

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

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

[**9] Discussion

Leave to Amend

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

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

[**10] General Obligations Law §5-326

GOL §5-326 states that:

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

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

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

Assumption of Risk

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

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

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

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

The foregoing constitutes the decision and order of the court.

ENTER,

/s/ Mark I Partnow

J. S. C.

HON. MARK I PARTNOW

SUPREME COURT JUSTICE


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

 

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


Only a New York City bike share case create a 34-page opinion on just motions that are filed. The results are all over the board, both the defendants and the plaintiff winning issues on an electronic release

A Ten-page release was upheld as valid. But the process was full of enough holes the plaintiff is still in the game.
Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

State: New York: United States District Court for the Southern District of New York

Plaintiff: Ronald D. Corwin, et al

Defendant: NYC Bike Share, LLC, et al

Plaintiff Claims: was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice

Defendant Defenses: Release, Assumption of the Risk Immunity

Holding: Mixed

Year: 2017

Summary

Extremely complicated decision because of the number of claims of the plaintiff and the number of defendants in the case. Each defendant has a different perspective to the defenses.

The decision looks at what happens if you are not wearing a helmet while cycling and you receive a head injury as well as how assumption of the risk and open and obvious defenses are dealt with in a city and against city agencies.

The last issue, is electronic releases in New York City.

Facts

The plaintiff had signed up for a year long bike share rental agreement with New York City bike share. He did that online and, in the process, agreed to a release that was ten pages.

He rented a bike one day and was riding on the street. He felt pressure from traffic on his left. A bike share area was coming up on his right and he rode into it. The bike share locations must be on the streets in New York. He continued through the area and at the end hit a concrete wheel stop. He crashed suffering injuries.

Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging that the Citi Bike station in question was improperly designed, in-stalled, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.

He sued everyone there was in New York. Sixteen different law firms are listed in the case. The plaintiff sued:

City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program

NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system

New York City Department of Transportation

Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company

Alta Planning + Design (“APD”)

Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system

Metro Express Services, Inc. (“Metro Express”) installation

Sealcoat USA, Inc. (“Sealcoat”) installation

The lawsuit was in Federal District Court. This opinion is the magistrate’s opinion on the motions filed by the parties. Judge assign non-trial work, such as deciding motions to magistrates. After the magistrate’s opinion is filed the parties have X days to respond/object. The judge then reviews and either adopts, modifies or writes his own opinion.

When the judge rules on the magistrate’s opinion there is usually a written record of the ruling. There are two additional motions the magistrate writes about that are in the record, but no ruling from the court.

Probably the parties settled based on this ruling.

There are a lot of arguments in this 34-page ruling. I’m only going to write about the ones that are important to the outdoor recreation and cycling community.

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

The first defense discussed here is the electronic release signed by the plaintiff to become a bike share member and rent bikes.

The first issues were plaintiff did not remember signing the release, but did sign up and admitted that he probably agreed to things.

The Bike Share program could not produce a release “signed” by the plaintiff. The produced a release that was in use at the time the plaintiff signed the release and the produced testimony of a former manager to testified that the only way the plaintiff could have become a member and ride bikes was if he had agreed to the release.

The plaintiff also argued the release was Unconscionable.

A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party

The court first went into the issue of whether the release existed and was signed. The release was determined to be a “clickwrap” agreement.

Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of service. “[U]nder a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.”

The court found clickwrap agreements were enforceable.

Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.

However, the presumption of enforceability is based several factors.

The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind them-selves to contract terms

In New York the courts have already set a group of tests to determine if a clickwrap agreement is enforceable.

First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement.

Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink.

Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” (collecting cases refusing to enforce such agreements).

Special attention should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted).

Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.

Using this set of parameters, the magistrate reviewed the bike Share release and found it was not unconscionable.

The plaintiff then argued the release was not clear, coherent or unambiguous.

To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims.

This ambiguity was based on contradictions between two sections in the ten-page release. However, the court found there was no ambiguity.

Then the plaintiff argued the release was void on public policy grounds.

The plaintiff raised three arguments on why the release violated public policy. It violated New York City Administrative Code, it violated New York General Obligations law § 5-326 and it violated the cities common law duty to maintain roads.

The court found New York City administrative code could not serve as a basis for invalidating a release.

New York General Obligations law § 5-326 is the statute that restricts on who can use a release. The language of the statutes says that “operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” can’t use a release. Since the bike share program was not a facility, the release was valid.

Finally, the common law duty the city of New York had to maintain the roads did not violate the release because “…the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads.”

The release was not void based on public policy considerations.

However, the release did not apply to the city of New York because that would be contrary to public policy.

In the end the negligence claims of the plaintiff were denied because of the release. The gross negligence claims were still valid. Under New York Law and the law of most states, claims for gross negligence cannot be stopped by a release.

The next issue was how the fact the plaintiff did not wear a helmet, at the time of his injury, would be used in the case.

The defendants argued that the plaintiff not wearing a helmet should be used by the defendants to show the plaintiff was liable for his injuries, (that the plaintiff was comparative negligence), to prove assumption of the risk and to mitigate the damages he incurred.

The plaintiff argued that since there was no statutory duty to wear a helmet, then the defendants could not make their arguments.

The court applied the same rationale to wearing a bike helmet as the courts had done in New York to wearing a seat belt in a car crash. Not wearing a bike helmet, it could not be used to prove liability on the part of the plaintiff but it could be used to reduce damages.

…the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how dam-ages, if any, should be assessed.

The defendant then argued they should have qualified immunity on the plaintiff’s claims of failing to provide a bike helmet to him while renting a bike.

Immunity is granted by statute to governments and their agencies for the decisions they make. As long as the decisions are not intentional and thought out the immunity applies. The immunity then stops the courts from reviewing those decisions as long as the decisions are made under the guidelines the law has set out.

Although the city may use the fact the plaintiff did not wear a helmet to reduce any damages the city might owe to the plaintiff. The plaintiff cannot use that argument to say the city was liable for not providing helmets. Nor can the plaintiff argue the his not wearing a helmet was unreasonable and did not breach a duty of care.

Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.

Here those guidelines were made by the city in its decision to not include helmets in the rentals of the bikes.

He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.

Assumption of the Risk

The defendants moved for summary judgment because the plaintiff assumed the risk of his injuries while riding a bike. Primary assumption of the risk is defined as:

In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

The risks were also identified in the release the plaintiff signed and which had been accepted by the court.

Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.”

However, the court rejected the defense because the plaintiff at the time of his injury was not engaged in a sporting activity.

Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her con-sent to the dangers inherent in the activity may reasonably be inferred.” Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.

So, assumption of the risk only applies to recreation and sports in New York? If you are walking down a sidewalk and see a hole in the sidewalk, on your way to work you don’t assume the risk if you fall into the hole?

The next argument by the defendants are not liable because the danger the plaintiff encountered was open an obvious.

The Open and Obvious defense seems fairly simple. If the thing or condition that injured the plaintiff was open and obvious then the plaintiff cannot sue for his injuries. It is very similar to an assumption of the risk defense.

A defendant has “no duty to protect or warn against an open and obvious condition which is not inherently dangerous. Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion

The defendants argue the concrete wheel stop was open and obvious.

…because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.

The plaintiff’s argument, based on the testimony of his expert witness was the wheel stop was not open and obvious because it was too big and was located in the travel lane had been camouflaged, in the way it was put in and painted.

The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.”.

How something could be too big and then not be open and obvious is confusing. This was enough for the court to deny motion for summary judgment based on the open and obvious theory.

Gross Negligence of the Bike Share defendant

Gross negligence under New York law is

…conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” “In order to establish a prima facie case in gross negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.

The plaintiff’s expert opined that the defendants ignored sound engineering practices when creating and installing the wheel stop and that it was foreseeable that the injuries would occur when the wheel stop was placed in the cycling path. Based on that language, the court found that the actions of the defendants could be defined as gross negligence.

The defendant won most of the decisions, however the plaintiff won enough and won significant ones that allowed the litigation to continue.

So Now What?

The final paragraph of the decision has a review of all decisions for the plaintiff and the defendants if you would like to keep a tally. However, there are several decisions concerning plaintiffs that were not reviewed here because they had no relationship to outdoor recreation or the legal issues commonly faced in outdoor recreation.

Obviously, the injuries to the plaintiff are significant to bring such forces to this litigation to justify this much work. The amount of effort put into prosecuting a case for a plaintiff can SOMETIMES be an indication of the damages to the plaintiff when those damages are not identified in the decision.

More importantly, the legal issues of suing New York City and its agencies are far more complex then found in most cities.

There are some interesting points worth noting. You could guess that the judge thought a ten-page release was long since she pointed it out. However, you cannot argue that your release is too long. Especially since electronically they do not have a length that is measured so easily.

Not wearing a helmet can be an issue in cycling and possibly skiing, even though the effectiveness of wearing one can be disputed. I suspect the next step would be to find a helmet expert by the plaintiff to argue that a helmet would not have prevented the damages the plaintiff received and the defendants will find an expert to argue the opposite.

The failure to provide proof that the plaintiff signed the release was overcome. However, design your system so you don’t have to jump through these hurdles. Crate a system that matches the signing to the credit card or other way of showing that on this date at this time the person entered his name and address, credit card number and clicked on this button saying he accepted the release. Then you add, his credit card would not have been charged unless he agreed to the release.

If you are designing bike share locations, do so in a way that people on bikes can assume they can ride through them.

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:

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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,


Duhon v. Activelaf, LLC, 2016-0818 (La. 10/19/16); 2016 La. LEXIS 2089

Duhon v. Activelaf, LLC, 2016-0818 (La. 10/19/16); 2016 La. LEXIS 2089

James Duhon versus Activelaf, LLC, D/B/A Skyzone Lafayette and Underwriters at Lloyds, London

No. 2016-CC-0818

SUPREME COURT OF LOUISIANA

2016-0818 (La. 10/19/16); 2016 La. LEXIS 2089

October 19, 2016, Decided

NOTICE:

THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

SUBSEQUENT HISTORY: Rehearing denied by Duhon v. Activelaf, LLC, 2016 La. LEXIS 2483 (La., Dec. 6, 2016)

US Supreme Court certiorari denied by ActiveLAF, LLC v. Duhon, 2017 U.S. LEXIS 4039 (U.S., June 19, 2017)

PRIOR HISTORY: [*1] ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE.

Duhon v. Activelaf, LLC, 2016 La. App. LEXIS 629 (La.App. 1 Cir., Apr. 5, 2016)

DISPOSITION: REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-Where plaintiff patron sued defendant trampoline park, alleging he was injured due to its negligence, the provision of an agreement he signed waiving his right to trial and compelling arbitration was adhesionary and thus unenforceable due to the lack of mutuality of obligations together with the obscure placement of the arbitration language in the agreement; [2]-As the high court applied Louisiana law applicable to contracts generally, not just to arbitration agreements, its ruling was consistent with the savings clauses in 9 U.S.C.S. § 2 of the FAA and La. Rev. Stat. § 9:4201.

OUTCOME: The judgment of the intermediate appellate court was reversed.

CORE TERMS: arbitration clause, arbitration, arbitration agreement, adhesionary, box, mutuality, patron’s, arbitration provision, contract of adhesion, unenforceable, auction, standard form, enforceable, bargaining positions, enforceability, weaker, ren, bargaining power, unequal, print, state law, physical characteristics, invalidate, arbitrate, consented, printed, real estate, distinguishing features, non-drafting, recreational

LexisNexis(R) Headnotes

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Appeals > Standards of Review > Fact & Law Issues

[HN1] Where a case involves legal questions, the appellate court reviews the matter de novo.

Civil Procedure > Alternative Dispute Resolution > Validity of ADR Methods

Governments > Legislation > Interpretation

Constitutional Law > Supremacy Clause > Federal Preemption

Civil Procedure > Alternative Dispute Resolution > Arbitrations > Federal Arbitration Act > Arbitration Agreements

Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

[HN2] Louisiana and federal law explicitly favor the enforcement of arbitration clauses in written contracts. Louisiana Binding Arbitration Law (LBAL) is set forth in La. Rev. Stat. Ann. § 9:4201 et seq. and expresses a strong legislative policy favoring arbitration. § 9:4201. Such favorable treatment echoes the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq. The LBAL is virtually identical to the FAA, and determinations regarding the viability and scope of arbitration clauses are the same under either law; thus, federal jurisprudence interpreting the FAA may be considered in construing the LBAL. Further, to the extent that federal and state law differ, the FAA preempts state law as to any written arbitration agreement in a contract involving interstate commerce.

Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

Civil Procedure > Alternative Dispute Resolution > Arbitrations > Federal Arbitration Act > Arbitration Agreements

Contracts Law > Formation

Civil Procedure > Federal & State Interrelationships > Choice of Law

[HN3] The Federal Arbitration Act, 9 U.S.C.S. § 1 et seq., makes arbitration agreements valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contact. 9 U.S.C.S. § 2. This provision reflects both a liberal federal policy favoring arbitration, and the fundamental principle that arbitration is a matter of contract. In line with these principles, courts must place arbitration agreements on an equal footing with other contracts. Despite this policy favoring enforcement of arbitration agreements, the U.S. Supreme Court has also recognized that, under the savings clause in § 2, general state contract principles still apply to assess whether those agreements to arbitrate are valid and enforceable, just as they would to any other contract dispute arising under state law. Accordingly, ordinary state-law principles that govern the formation of contracts are applied when deciding whether the parties agreed to arbitration. Importantly, the savings clause in § 2 does not permit courts to invalidate an arbitration agreement under a state law applicable only to arbitration provisions.

Contracts Law > Formation > Execution

Computer & Internet Law > Internet Business > Contracts > Electronic Contracts

Computer & Internet Law > Internet Business > Contracts > Digital Signatures

[HN4] Louisiana law gives legal effect to both electronic contracts and signatures. La. Rev. Stat. Ann. § 9:2607. The court interprets and analyzes the terms of an electronic agreement using the same rules that it would apply to oral and written contracts.

Contracts Law > Defenses > Unconscionability > Adhesion Contracts

Contracts Law > Formation > Meeting of Minds

[HN5] Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms. Although a contract of adhesion is a contract executed in a standard form in the vast majority of instances, not every contract in standard form may be regarded as a contract of adhesion. Therefore, the Louisiana Supreme Court is not willing to declare all standard form contracts adhesionary; rather, it finds standard form serves merely as a possible indicator of adhesion. The real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms. Thus, the issue is one of consent.

Contracts Law > Formation > Meeting of Minds

Contracts Law > Defenses > Unconscionability > Adhesion Contracts

[HN6] In determining if a contract is adhesionary, consent is called into question by the standard form, small print, and most especially the disadvantageous position of the accepting party, which is further emphasized by the potentially unequal bargaining positions of the parties. An unequal bargaining position is evident when the contract unduly burdens one party in comparison to the burdens imposed upon the drafting party and the advantages allowed to that party. Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error, which in turn, renders the contract or provision unenforceable. A contract is one of adhesion when either its form, print, or unequal terms call into question the consent of the non-drafting party and it is demonstrated that the contract is unenforceable, due to lack of consent or error, which vitiates consent. Accordingly, even if a contract is standard in form and printed in small font, if it does not call into question the non-drafting party’s consent and if it is not demonstrated that the non-drafting party did not consent or his consent is vitiated by error, the contract is not a contract of adhesion.

Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

Civil Procedure > Alternative Dispute Resolution > Validity of ADR Methods

Evidence > Procedural Considerations > Burdens of Proof > Allocation

[HN7] The party seeking to enforce an arbitration provision has the burden of showing the existence of a valid contract to arbitrate.

Civil Procedure > Alternative Dispute Resolution > Arbitrations > Federal Arbitration Act > Arbitration Agreements

Constitutional Law > Supremacy Clause > Federal Preemption

Contracts Law > Defenses

[HN8] The U.S. Supreme Court has admonished that, under the doctrine of preemption, state courts cannot adopt defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Nor can courts apply state law rules that stand as an obstacle to the accomplishment of the objectives of the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq. Setting forth a legal requirement relative to a particular form or method of distinguishing or highlighting arbitration clauses, or requiring term-for-term mutuality in an arbitration clause could risk running afoul of the FAA. However, the Supreme Court has made it clear that state courts may apply standard state law contract defenses to arbitration agreements.

Contracts Law > Defenses > Unconscionability > Adhesion Contracts

Contracts Law > Defenses > Unconscionability > Arbitration Agreements

Contracts Law > Formation > Meeting of Minds

Civil Procedure > Alternative Dispute Resolution > Arbitrations > Federal Arbitration Act > Arbitration Agreements

Constitutional Law > Supremacy Clause > Federal Preemption

[HN9] Consideration of enforceability of contracts of adhesion is an issue of consent, and determining whether a party truly consented to the contract terms. Consideration of consent is not limited to arbitration clauses; courts consider the issue of consent in any contract. Lack of consent is a generally applicable contract defense. La. Civ. Code Ann. art. 1927. The factors discussed in Aguillard v. Auction Management Corp. simply provide a template for considering consent to an arbitration clause contained in a standard contract. Aguillard did not create a per se rule that any degree of non-mutuality in an arbitration agreement renders it unenforceable, nor did Aguillard prescribe a definitive rule that arbitration agreements must be delineated a particular way to be enforceable.

Contracts Law > Defenses > Unconscionability > Adhesion Contracts

Contracts Law > Defenses > Unconscionability > Arbitration Agreements

[HN10] The determination of whether an arbitration clause in a standard form contract is adhesionary is necessarily made on a case by case basis.

COUNSEL: WILLIAMSON, FONTENOT, CAMPBELL & WHITTINGTON, LLC, Christopher Lee Whittington; For Applicant.

TAYLOR, PORTER, BROOKS & PHILLIPS, LLP, Tom Samuel Easterly; For Respondent.

JUDGES: JOHNSON CHIEF JUSTICE. WEIMER J. dissenting. GUIDRY J. dissents and assigns reasons. CRICHTON J. additionally concurs and assigns reasons. CLARK J. concurring. Hughes J. concurring.

OPINION BY: JOHNSON

OPINION

[Pg 1] JOHNSON, CHIEF JUSTICE

Patrons of Sky Zone Lafayette, an indoor trampoline park, are required to complete a “Participant Agreement, Release and Assumption of Risk” document (“Agreement”) prior to entering the facility. The Agreement contains a clause waiving the participant’s right to trial and compelling arbitration. Plaintiff, James Duhon, was a patron at Sky Zone and was injured in the course of participating in the park’s activities. After Mr. Duhon filed suit seeking damages, Sky Zone filed an exception of prematurity seeking to compel arbitration pursuant to the Agreement. The district court overruled Sky Zone’s exception, but the court of appeal reversed, finding the arbitration provision should be enforced.

For the following reasons, we reverse the ruling of the court of appeal, holding the arbitration clause in the Sky Zone agreement [*2] is adhesionary and therefore unenforceable.

FACTS AND PROCEDURAL HISTORY

On April 19, 2015, James Duhon, accompanied by three minors, went to Sky Zone in Lafayette. Upon entering the facility, Mr. Duhon was directed by Sky Zone staff to a computer screen to check himself and the minors into the facility. Check-in [Pg 2] required all participants to complete a Participation Agreement which requested names and dates of birth for all participants, required participants to check three boxes next to certain terms of the Agreement, and required participants to digitally sign the Agreement.

The Agreement provided that in consideration for gaining access to Sky Zone Lafayette and engaging in the services, patrons agreed:

[ ] I acknowledge that my participation in [Sky Zone] trampoline games or activities entails known and unanticipated risks that could result in physical or emotional injury including, but not limited to broken bones, sprained or torn ligaments, paralysis, death, or other bodily injury or property damage to myself my children, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity. I expressly agree [*3] and promise to accept and assume all of the risks existing in this activity. My and/or my children’s participation in this activity is purely voluntary and I elect to participate, or allow my children to participate in spite of the risks. If I and/or my children are injured, I acknowledge that I or my children may require medical assistance, which I acknowledge will be at my own expense or the expense of my personal insurers. I hereby represent and affirm that I have adequate and appropriate insurance to provide coverage for such medical expense.

[ ] In consideration for allowing me and the minor child(ren) identified herein to participate in the [Sky Zone] activities and use the [Sky Zone] facility, I expressly and voluntarily agree to forever release, acquit, indemnify and discharge [Sky Zone] and agree to hold [Sky Zone] harmless on behalf of myself, my spouse, my children, my parents, my guardians, and my heirs, assigns, personal representative and estate, and any and all other persons and entities who could in any way represent me, or the minor children identified herein or act on our respective halves, from any and all actions or omissions, cause and causes of action, suits, debts, [*4] damages, judgments, costs, including, but not limited to attorney’s fees, and claims and demands whatsoever, in law or in equity, for any personal injury, death, or property damages that I and/or the minor children’s use of [Sky Zone] activities, [Sky Zone] premises or at offsite and camp activities related to [Sky Zone]. This waiver is intended to be a complete release of any and all responsibility or duties owed by [Sky Zone] as indemnitees for personal injuries, death and/or property loss/damage sustained by myself or any minor children identified herein while on the [Sky Zone] premises, or with respect to [Sky Zone] activities, whether using [Sky Zone] equipment or not, even if such injury or damage results from [Sky Zone] negligence, [Sky Zone] employee [Pg 3] negligence, improper supervision, improper maintenance of [Sky Zone] equipment or premises or negligence by other [Sky Zone] guests.

[ ] I certify that I and/or my child(ren) are physically able to participate in all activities at the Location without aid or assistance. I further certify that I am willing to assume the risk of any medical or physical condition that I and/or my child(ren) may have. I acknowledge that I have [*5] read the rules, (the “Sky Zone Rules”) governing my and/or my child(ren)’s participation in any activities at the Location. I certify that I have explained the [Sky Zone] Rules to the child(ren) identified herein. I understand that the [Sky Zone] Rules have been implemented for the safety of all guests at the Location. I agree that if any portion of this Agreement is found to be void and unenforceable, the remaining portions shall remain in full force and effect. If there are any disputes regarding this agreement, I on behalf of myself and/or my child(ren) hereby waive any right I and/or my child(ren) may have to a trial and agree that such dispute shall be brought within one year of the date of this Agreement and will be determined by binding arbitration before one arbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. I further agree that the arbitration will take place solely in the state of Louisiana and that the substantive law of Louisiana shall apply. If, despite the representations made in this agreement, I or anyone on behalf of myself and/or my child(ren) file or otherwise initiate a lawsuit against [Sky Zone], in addition to [*6] my agreement to defend and indemnify [Sky Zone], I agree to pay within 60 days liquidated damages in the amount of $5,000 to [Sky Zone]. Should I fail to pay this liquidated damages amount within the 60 day time period provided by this Agreement, I further agree to pay interest on the $5,000 amount calculated at 12% per annum.

I further grant [Sky Zone] the right, without reservation or limitation, to videotape, and/or record me and/or my children on closed circuit television.

I further grant [Sky Zone] the right, without reservation or limitation, to photograph, videotape, and/or record me and/or my children and to use my or my children’s name, face, likeness, voice and appearance in connection with exhibitions, publicity, advertising and promotional materials.

I would like to receive free email promotions and discounts to the email address provided below. I may unsubscribe from emails from Sky Zone at any time.

By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit [Pg 4] against [Sky Zone] on the basis of any claim from which I have [*7] released them herein. I have had sufficient opportunity to read this entire document. I understand this Agreement and I voluntarily agree to be bound by its terms.

I further certify that I am the parent or legal guardian of the children listed above on this Agreement or that I have been granted power of attorney to sign this Agreement on behalf of the parent or legal guardian of the children listed above.

Mr. Duhon electronically completed the Agreement on behalf of himself and the minors by checking the three boxes provided in the agreement, furnishing the relevant personal identifying information, and clicking on an “accept” button. Mr. Duhon and the minors then entered the facility.

Mr. Duhon asserts he was injured at the facility due to Sky Zone’s negligence. On August 12, 2015, Mr. Duhon filed suit against Activelaf, L.L.C., d/b/a Sky Zone Lafayette and its insurer (“Sky Zone”). In response, Sky Zone filed several exceptions, including an exception of prematurity. Sky Zone alleged that the Agreement contained a mandatory arbitration clause, thereby rendering Mr. Duhon’s suit premature. Mr. Duhon asserted he did not knowingly consent to arbitration, and argued the Agreement was adhesionary [*8] and ambiguous.

Following a hearing, the district court determined there was a lack of mutuality in the Agreement relative to the arbitration clause because only Mr. Duhon was bound to arbitrate claims. Thus, relying on this court’s decision in Aguillard Auction Management Corp., 04-2804 (La. 6/29/05), 908 So. 2d 1 and the Third Circuit’s opinion in Sutton Steel & Supply, Inc. v. Bellsouth Mobility, Inc., 07-146 (La. App. 3 Cir. 12/12/07), 971 So. 2d 1257, the district court refused to enforce the arbitration agreement and overruled Sky Zone’s exception of prematurity.

The court of appeal granted Sky Zone’s writ and reversed the district court’s ruling:

There is a strong presumption favoring the enforceability of arbitration [Pg 5] clauses. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Aguillard v. Auction Management Corp., 2004-2804 (La. 6/29/05), 908 So. 2d 1. We find that plaintiff failed to establish that this arbitration provision is adhesionary, and accordingly, the arbitration provision should be enforced.

Judge Theriot dissented without reasons, stating he would deny the writ application. Duhon v. ActiveLaf, LLC, 16-0167, 2016 La. App. LEXIS 629 (La. App. 1 Cir. 4/5/16) (unpublished).

On Mr. Duhon’s application, we granted certiorari to review the correctness of the court of appeal’s ruling. Duhon v. ActiveLaf, LLC, 16-0818 (La. 6/17/16), 192 So. 3d 762.

DISCUSSION

This [HN1] case involves the legal [*9] questions of whether the court of appeal erred in its “contract of adhesion” analysis of the arbitration clause in the Agreement, and whether the arbitration clause is unenforceable on general contract principles of consent or adhesion. Thus, we review the matter de novo. See Aguillard, 908 So. 2d at 3; Prasad v. Bullard, 10-291 (La. App. 5 Cir. 10/12/10), 51 So. 3d 35, 39; Horseshoe Entertainment v. Lepinski, 40,753 (La. App. 2 Cir. 3/8/06), 923 So. 2d 929, 934, writ denied, 06-792 (La. 6/2/06), 929 So. 2d 1259.

[HN2] Louisiana and federal law explicitly favor the enforcement of arbitration clauses in written contracts. Aguillard, 908 So. 2d at 7. Louisiana Binding Arbitration Law (“LBAL”) is set forth in La. R.S. 9:4201 et seq. and expresses a strong legislative policy favoring arbitration. La. R.S. 9:4201 provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

As this court recognized in Aguillard, “[s]uch favorable treatment echos the Federal [Pg 6] Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq.” 908 So. 2d at 7. We noted the LBAL is virtually identical to the FAA, and determinations regarding [*10] the viability and scope of arbitration clauses are the same under either law, thus federal jurisprudence interpreting the FAA may be considered in construing the LBAL. Id. at 18. Further, to the extent that federal and state law differ, the FAA preempts state law as to any written arbitration agreement in a contract involving interstate commerce. Hodges v. Reasonover, 12-0043 (La. 7/2/12), 103 So. 3d 1069, 1072; FIA Card Services, N.A. v. Weaver, 10-1372 (La. 3/15/11), 62 So. 3d 709, 712; Collins v. Prudential Ins. Co. of America, 99-1423 (La. 1/19/00), 752 So. 2d 825, 827.

[HN3] The FAA makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contact.” 9 U.S.C. §2 (emphasis added). The United States Supreme Court has explained that this provision reflects both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S. Ct. 1740, 1745, 179 L.Ed. 2d 742 (2011) (citing Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed. 2d 765 (1983) and Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772, 2776, 177 L.Ed. 2d 403 (2010)). The Supreme Court has instructed that in line with these principles, courts must place arbitration agreements on an equal footing with other contracts. Concepcion, 563 U.S. at 339 (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed. 2d 1038 (2006)). Despite this policy favoring enforcement of arbitration agreements, the Supreme Court has also recognized that, under the savings clause in §2, general state contract principles still apply to assess whether those agreements to arbitrate are valid and enforceable, just as they would to any other [*11] contract dispute arising under state law.[Pg 7] Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 1656, 134 L. Ed. 2d 902 (1996). Accordingly, ordinary state-law principles that govern the formation of contracts are applied when deciding whether the parties agreed to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed. 2d 985 (1995). Importantly, the savings clause in § 2 does not permit courts to invalidate an arbitration agreement under a state law applicable only to arbitration provisions. Concepcion, 563 U.S. at 339; Aguillard, 908 So. 2d at 8.

With these principles in mind, we consider whether the arbitration clause in the Sky Zone Agreement should be invalided under Louisiana law. As an initial matter, we note the electronic nature of the Agreement in this case is of no legal consequence and does not fundamentally change the principles of contract. [HN4] Louisiana law gives legal effect to both electronic contracts and signatures. See La. R.S. 9:2607. We interpret and analyze the terms of the Agreement using the same rules that we would apply to oral and written contracts.

Aguillard is the seminal case from this court addressing the validity of an arbitration agreement in a standard form contract. In Aguillard, the winning bidder at a real estate auction brought suit to enforce the auction sales agreement. This court, pursuant to its authority under La. R.S. 9:4201 and 9 U.S.C. § 2, applied a “contract [*12] of adhesion” analysis to determine the enforceability and validity of an arbitration agreement in the auction contract. In discussing the “contract of adhesion” doctrine, we explained: [HN5] “Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.” 908 So. 2d at 10. This court further stated that “although a contract of adhesion is a contract executed in a standard form in the vast majority of instances, not every [Pg 8] contract in standard form may be regarded as a contract of adhesion. Therefore, we are not willing to declare all standard form contracts adhesionary; rather, we find standard form serves merely as a possible indicator of adhesion.” Id. (Internal citations removed). We made clear that the “real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms. Thus, the issue is one of consent.” Id. (Internal citations removed). The court explained: [*13]

[HN6] Consent is called into question by the standard form, small print, and most especially the disadvantageous position of the accepting party, which is further emphasized by the potentially unequal bargaining positions of the parties. An unequal bargaining position is evident when the contract unduly burdens one party in comparison to the burdens imposed upon the drafting party and the advantages allowed to that party. Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error, which in turn, renders the contract or provision unenforceable.

In summation, a contract is one of adhesion when either its form, print, or unequal terms call into question the consent of the non-drafting party and it is demonstrated that the contract is unenforceable, due to lack of consent or error, which vitiates consent. Accordingly, even if a contract is standard in form and printed in small font, if it does not call into question the non-drafting party’s consent and if it is not demonstrated that the non-drafting party did not consent or his [*14] consent is vitiated by error, the contract is not a contract of adhesion.

Id. at 10-11. Thus, the question we consider is whether Mr. Duhon truly consented to the arbitration provision in the Agreement.

In concluding the arbitration provision in Aguillard was not adhesionary, we noted (1) the arbitration provision was contained in a short, two-page document and was contained in a single sentence paragraph; (2) the arbitration provision was not concealed; (3) the contract did not lack mutuality because defendants did not reserve their right to litigate issues arising from the contract; and (4) the parties did not have a significant difference in bargaining power because a real estate auction is not a [Pg 9] necessary transaction that plaintiff was compelled to enter. Id. Thus, while not declaring a definitive test, this court effectively established a framework for examining the validity of an arbitration clause within a standard form contract by generally describing the characteristics of an unenforceable adhesionary agreement. Finding our analysis in Aguillard instructive, we consider the following factors to determine the enforceability of the arbitration clause in the Sky Zone Agreement: (1) [*15] the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration clause, and (4) the relative bargaining strength of the parties. After our review of the Agreement in light of the above factors, we hold the arbitration clause is adhesionary and not enforceable because of its placement in the Agreement and its lack of mutuality.

Examining the physical characteristics of the arbitration clause, we observe the arbitration language is consistent in size and font with the other provisions in the Agreement. However, the lack of distinguishing features and the specific placement of the arbitration clause serve to conceal the arbitration language from Sky Zone patrons. The Agreement is structured with check boxes next to the first three paragraphs, followed by five additional paragraphs without corresponding check boxes. The first check box is placed next to a single, six-sentence paragraph generally discussing participants’ risks of injuries and assumption of those risks. The second check box is placed next to a single paragraph containing two long sentences purporting to release Sky Zone from any liability. [*16] The third check box is placed next to one long paragraph discussing multiple topics. Specifically, the arbitration language is located starting in the eleventh line of this third paragraph, following provisions regarding patrons’ physical ability to participate in the activities, assumption of the risks, certification that Sky Zone’s rules have been explained to any children, and expressing agreement to follow those rules.

[Pg 10] In Aguillard, we noted “the arbitration provision, although not distinguished, was not concealed in any way, but rather was contained in a single sentence paragraph separated from the preceding and following paragraphs by double spacing.” 908 So. 2d at 16. Sky Zone argues the paragraph containing the arbitration clause was sufficiently distinguished and brought to patrons’ attention through the use of the check box feature. We disagree. Although patrons are required to check a box adjacent to the top of the third paragraph, significantly no check box was placed next to the arbitration language. In contrast, the other two check boxes in the Agreement were placed next to paragraphs limited to one subject matter. The Agreement also contains five additional paragraphs following [*17] the third paragraph that do not include corresponding check boxes. Each of these are short one-topic paragraphs addressing such items as Sky Zone’s right to videotape and record patrons and to use recordings for promotional materials. Thus, looking at the Agreement as a whole, the arbitration language appears to be the only specific provision not relegated to a separate paragraph or set apart in some explicit way. Here, the two-sentence provision mandating arbitration is camouflaged within the confines of an eleven sentence paragraph, nine of which do not discuss arbitration. The effect of the placement of the arbitration language is to cloak it within a blanket of boilerplate language regarding rules and risks of participating in the Sky Zone activities. Thus, although it is undisputed that Mr. Duhon electronically signed the Agreement, purportedly demonstrating an acceptance of its terms, under Louisiana contract law, we find Mr. Duhon did not truly consent to the arbitration provision.

Additionally, the lack of mutuality in the arbitration clause fortifies our finding that it is adhesionary. The arbitration provision requires only Sky Zone patrons to submit their claims to arbitration. [*18] The entire contract, including the arbitration clause, repeatedly includes “I acknowledge” and “I agree” language, with the “I” referencing [Pg 11] the “applicant” – here, Mr. Duhon. Specifically, the Agreement provides if there are any disputes regarding this agreement “I … hereby waive any right … to a trial and agree that such dispute shall be … determined by binding arbitration …” Although Sky Zone does not expressly reserve itself the right to pursue litigation, nowhere in the Agreement are “the parties” or Sky Zone particularly bound to arbitration. This is in stark contrast to the arbitration clause in Aguillard which clearly applied to both parties by providing: “Any controversy or claim arising from or relating to this agreement or any breach of such agreement shall be settled by arbitration administered by the American Arbitration Association under is [sic] rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.” 908 So. 2d at 4. Thus, in Aguillard, we found the arbitration clause did not lack sufficient mutuality to invalidate the clause as adhesionary because the arbitration clause severely limited both the defendants’ [*19] and the plaintiff’s right to litigate, and the defendants did not reserve their right to litigate in the document. Id. at 16. Even more troublesome in this case is the punitive provision compelling patrons to pay Sky Zone liquidated damages of $5,000 within sixty days should the patron file suit, with legal interest added at 12% per year. Sky Zone has no mutual obligation in the Agreement.

[HN7] The party seeking to enforce an arbitration provision has the burden of showing the existence of a valid contract to arbitrate. FIA Card Services, 62 So. 3d at 719. Sky Zone has failed to meet this burden. Considering the lack of mutuality together with the obscure placement of the arbitration language in the Agreement, and in comparison to the contract in Aguillard, we are compelled to find the arbitration clause in the Sky Zone Agreement is adhesionary and unenforceable.

In finding this arbitration clause invalid, we have carefully considered [HN8] the Supreme Court’s admonition that, under the doctrine of preemption, state courts [Pg 12] cannot adopt defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. See, e.g., Concepcion, 563 U.S. at 339; Casarotto, 517 U.S. at 687. Nor can we apply state law rules that stand as an obstacle [*20] to the accomplishment of the FAA’s objectives. Concepcion, 563 U.S. at 343. We are mindful that setting forth a legal requirement relative to a particular form or method of distinguishing or highlighting arbitration clauses, or requiring term-for-term mutuality in an arbitration clause could risk running afoul of the FAA. However, the Supreme Court has made it clear that state courts may apply standard state law contract defenses to arbitration agreements. Id. at 339. Our application of Louisiana contract law to invalidate the arbitration provision in the instant case is consistent with § 2 of the FAA, and we find no conflict between our holding today and Supreme Court decisions discussing preemption.

As explained earlier, [HN9] consideration of enforceability of contracts of adhesion is an issue of consent, and determining whether a party truly consented to the contract terms. Consideration of consent is not limited to arbitration clauses; we consider the issue of consent in any contract. Lack of consent is a generally applicable contract defense. See La. C.C. art. 1927. The factors discussed in Aguillard simply provided a template for considering consent to an arbitration clause contained in a standard contract. Aguillard did not create a per se rule that any [*21] degree of non-mutuality in an arbitration agreement renders it unenforceable, nor did Aguillard prescribe a definitive rule that arbitration agreements must be delineated a particular way to be enforceable. Considering the Aguillard analysis in its entirety, it is clear we viewed the arbitration provision in the context of the overall contract and the surrounding circumstances, and our determination was based on weighing several factors. Were we not to consider factors relative to consent when examining the validity of an arbitration agreement, we would be operating in contravention to the mandate of the Supreme Court by [Pg 13] treating arbitration agreements differently from other contracts. Thus, we find our application of Louisiana contract law to invalidate the arbitration provision in this case is consistent with the savings clauses in § 2 of the FAA and La. R.S. 9:4201.

CONCLUSION

[HN10] The determination of whether an arbitration clause in a standard form contract is adhesionary is necessarily made on a case by case basis. Based on the facts of this case, the concealment of the arbitration clause and the lack of mutuality compels us to find the arbitration clause in the Sky Zone Agreement is adhesionary and unenforceable. [*22] Accordingly, we find the court of appeal erred in reversing the district court’s ruling on Sky Zone’s exception of prematurity.1 Therefore, the ruling of the court of appeal is reversed, and the ruling of the district court is reinstated.

1 Because we hold the arbitration clause is adhesionary and unenforceable based on consideration of the factors set forth in Aguillard, we pretermit discussion of Mr. Duhon’s additional arguments relative to ambiguity of the Agreement or whether the scope of the arbitration clause covers personal injury.

DECREE

REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.

CONCUR BY: CRICHTON; CLARK

CONCUR

[Pg 1] CRICHTON, J., additionally concurs and assigns reasons.

I agree with the majority decision, and write separately to emphasize that I do not view this decision as a rejection of arbitration agreements. To the contrary, Louisiana law favors the enforcement of arbitration agreements. See La. R.S. 9:4201 (Validity of arbitration agreements). Consistent with the Federal Arbitration Act (“FAA”), arbitration agreements must be placed “upon the same footing” as other types of contracts.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974); see also 9 U.S.C. § 2. But just as Louisiana law should not create obstacles to the enforceability of arbitration [*23] agreements, see AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011) (applying the FAA to preempt a state law condition to the enforceability of an arbitration agreement), neither should Louisiana law create exceptions for arbitration agreements that do not exist for other types of contracts.

Without question, arbitration can be a waiver of the traditional access to our judicial system. And so, applying Aguillard v. Auction Management Corp., 04-2804 (La. 6/29/05), 908 So. 2d 1, this waiver must be in accord with Louisiana contract law, otherwise a party’s consent may be called into question. Thus, a [Pg 2] business entity or individual seeking to draft a contract that includes an arbitration agreement must meet all of the elements of an enforceable contract.

By concealing the existence of the arbitration agreement, this agreement deprives a party of redress in the justice system. To make a bad situation worse, this agreement does not bind Sky Zone to arbitration, yet it penalizes a Sky Zone patron–but not Sky Zone–for seeking to initiate a lawsuit. These blatant asymmetries exhibit a stunning lack of draftsmanship and fail to adhere to the principles set forth in Aguillard. Accordingly, in my view, this Court is bound to deem this agreement unenforceable.

CLARK, J., concurring.

I find that the contract at issue [*24] lacks mutuality to such an extent that the contract is adhesionary. Not only does the contract bind only patrons to arbitration, the contract stipulates that if a patron files a lawsuit against Sky Zone, the patron is liable for $5,000 in liquidated damages. At the same time, Sky Zone is free to file a lawsuit against the patron without any penalty.

[Pg 1] Hughes, J., concurring.

Although I do not agree that the arbitration language was hidden, I concur that it lacked mutuality, and thus with the result.

DISSENT BY: WEIMER; GUIDRY

DISSENT

[Pg 1] WEIMER, J., dissenting.

I agree with the majority’s assessment that the factors outlined in Aguillard v. Auction Management Corp., 04-2804 (La. 6/29/05), 908 So.2d 1, are an appropriate starting point for analyzing the issue presented in this matter.1 See Duhon v. ActiveLaf, LLC, 16-0818, slip op. at 7 (La. 10/ /16). However, I respectfully disagree with the majority’s conclusion that analysis of the Sky Zone Agreement using Aguillard’s four-factor “framework” supports a finding that the arbitration clause is adhesionary and not enforceable. To the contrary, I find the arbitration clause to be valid and enforceable. I also find that analysis of the clause using Aguillard’s factors, viewed in light of the strong and, as Aguillard describes it, “heavy” [*25] presumption in favor of arbitration, dictates that finding of enforceability. Aguillard, 04-2804 at 25, 908 So.2d at 18.

1 While I dissented in Aguillard, I did so solely on grounds that there was a threshold legal question that I believed needed to be resolved before reaching the issue of the enforceability of the arbitration clause: whether the arbitration clause at issue even applied in light of the fact that the Auction Agreement for the Purchase and Sale of Real Estate had been completed. Aguillard, 04-2804 at 1, 980 So.2d at 20-21 (Weimer, J., dissenting.).

As the majority recognizes, a contract of adhesion is broadly defined as “a standard contract, usually in printed form, [often in small print,] prepared by a party [Pg 2] of superior bargaining power for adherence or rejection of the weaker party.” Duhon, 16-0818, slip op. at 7-8 (quoting Aguillard, 04-2804 at 9, 908 So.2d at 8-9.) (Emphasis added.) Pursuant to this definition, a predicate factor to consider in determining whether a contract is adhesionary is the existence of unequal bargaining power. Indeed, this is one of the four factors delineated in the Aguillard analysis. Yet, the majority opinion does not mention, much less weigh, this factor in conducting its analysis-this, despite [*26] the fact that there must be unequal bargaining power for the contract to meet the definitional hurdle of a contract of adhesion in the first instance.

In this case, it is clear that, as in Aguillard, there was not “such a difference in bargaining positions between the parties so as to justify the application of the principle of contract of adhesion to the arbitration clause.” Aguillard, 04-2804 at 22, 908 So.2d at 16-17. As Aguillard explained in defining a contract of adhesion, “[o]wing to the necessities of modern life a particular kind of contract has been developed where one of the parties is not free to bargain.” Id., 04-2804 at 10, 908 So.2d at 9 (quoting Saul Litvinoff, Consent Revisited: Offer, Acceptance, Option, Right of First Refusal, and Contracts of Adhesion in the Revision of the Louisiana Law of Obligations, 47 La.L.Rev. 699, 757-59 (1986-1987)). Such a lack of bargaining power exists where “[t]he party in the weaker position is left with no other choice than to adhere to the terms proposed by the other.” Id. (Emphasis added.) Typical examples of such contracts include those entered into with “airlines, public utilities, railroad or insurance companies.” Id.

In Aguillard, this court recognized that the relative bargaining positions of the real estate auctioneer and the [*27] individual auction participant involved in that case were not so unequal as to justify invalidating the arbitration clause on grounds of adhesion, [Pg 3] reasoning that, although the participant was required to sign the agreement containing the arbitration clause in order to participate in the auction, “the underlying transaction, the real estate auction, [was] not … such a necessary transaction” that the participant “was compelled to enter it.” Id., 04-2804 at 22-23, 908 So.2d at 16-17. Indeed, the participant could have avoided arbitration by not signing the agreement, not participating in the auction, and simply walking away. See Id. 04-2804 at 22, 908 So.2d at 17. Under such circumstances, the court found “nothing sufficient to establish the [auctioneers] were in such a superior bargaining position as to render the [auction participant] a far weaker party or the contract adhesionary.” Id. 04-2804 at 23, 908 So.2d at 17.

The rationale of the court in Aguillard applies with equal force to the Sky Zone Agreement at issue in this case. Here, the Agreement concerns not a “necessity of modern life,” but a purely voluntary recreational activity. The plaintiff was not compelled-physically, economically or otherwise-to visit the trampoline park, jump on its trampolines, or sign the Agreement [*28] containing the arbitration clause. Jumping on a trampoline is simply not a practical necessity of modern living like water, electricity, or even airline flight. Like the auction participant in Aguillard, the plaintiff, here, retained the ultimate bargaining chip in this situation: he could have refused to sign Sky Zone’s Agreement, walked away, and pursued an alternative form of recreational activity. Given these circumstances, there is simply no evidence to establish that Sky Zone was in such a superior bargaining position as to render the plaintiff a far weaker party or the contract adhesionary.

Further, and also contrary to the majority, I find nothing in the Sky Zone Agreement, itself, that would call into question the validity of the plaintiff’s consent to the terms of the Agreement. This determination is based on my analysis of the [Pg 4] three factors that are addressed in the majority’s Aguillard analysis-(1) the physical characteristics of the arbitration clause; (2) the distinguishing features of that clause; and (3) the mutuality of the clause-and my differing conclusions as to each.

In addressing the first Aguillard factor-the physical characteristics of the arbitration clause-the [*29] majority acknowledges that “the arbitration language is consistent in size and font with the other provisions in Agreement.” Duhon, slip op. at 9. In fact, the clause is not in small print or otherwise unreadable, but is just as legible as every other word in the Agreement. The majority apparently concedes, therefore, and I agree, that the physical characteristics of the arbitration clause weigh in favor of finding the clause enforceable.

In addressing the second of the Aguillard factors-the distinguishing features of the clause-the majority, in my view, falls into error. It downplays the very feature that distinguishes the arbitration clause and calls its attention to the participant: the box located next to the paragraph in which the clause appears, a box which must be affirmatively checked before the Agreement can be completed. The majority chooses, instead, to focus solely on the fact that the arbitration language is not set out in a stand-alone paragraph to reach the conclusion that it is “camouflaged” and “cloak[ed] … within a blanket of boilerplate language” to such an extent that plaintiff could not have not consented to its terms, despite affirmatively indicating by checking the electronic box that he [*30] did just that. See Duhon, 16-0818, slip op. at 10. While it is true that the arbitration clause appears in a paragraph not limited to the single topic of arbitration, more than one-half of that paragraph concerns the agreed-upon arbitration, its procedure, its locale, governing law, and the consequences for refusing or otherwise breaching the agreement to arbitrate.2 The arbitration language is hardly [Pg 5] camouflaged. Further, the majority’s suggestion, that failure to set the arbitration language out in a stand-alone paragraph fails to sufficiently distinguish the arbitration clause, ignores the check box. See Duhon, 16-0818, slip op. at 10. The presence of that box is akin to, and has the same legal force and effect as, requiring the plaintiff to initial next to the paragraph, a requirement that affirmatively alerts the participant to the contents and significance of the paragraph.3 Like the arbitration provision in Aguillard, and contrary to the majority, I find the arbitration language in the Sky Zone Agreement was not concealed in any way and that the use of the electronic check boxes reasonably distinguished the clause.

2 See Duhon, 16-0818, slip op’n at 3.

3 Modern technology has introduced what is referred [*31] to as a “clickwrap” agreement as a mechanism for having a “user manifest his or her assent to the terms of the … agreement by clicking on an icon.” See Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2nd Cir. 2004).

Finally, as to the third Aguillard factor, the mutuality of the obligation to arbitrate, the majority acknowledges that “Aguillard did not create a per se rule that any degree of non-mutuality in an arbitration agreement renders it unenforceable,”4 and that “requiring term-for-term mutuality in an arbitration clause could risk running afoul of the [Federal Arbitration Act],”5 but then inexplicably invalidates the arbitration clause in the Sky Zone Agreement precisely because it lacks the term-for-term mutuality that it acknowledges the law does not require, and may even prohibit.6 In truth, the only difference between the arbitration clause in Aguillard and the one in the Sky Zone Agreement is the use of the “I” in the Sky Zone Agreement. However, the mere use of the word “I” does not render the clause non-mutual, [Pg 6] particularly in light of the fact, acknowledged by the majority, that the Agreement does not reserve to Sky Zone the right to pursue litigation.7

4 See Duhon, 16-0818, slip op. at 13.

5 See Duhon, 16-0818, slip op. at 12.

6 See Duhon, 16-0818, slip op. at 11-13.

7 See [*32] Duhon, 16-0818, slip op. at 11.

Consequently, unlike the majority, I find an analysis of all four of the factors outlined in Aguillard leads to the conclusion that the Sky Zone Agreement is not adhesionary and is valid and enforceable. This conclusion is strengthened, not only by the strong legislative policy that favors arbitration,8 but also by the long-standing principle that signatures to documents are not mere ornaments.9 As Aguillard notes: “It is well[-]settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him.” Id., 04-2804 at 22, 908 So.2d at 17. In this case, as in Aguillard, the plaintiff signed the Agreement acknowledging that he “had sufficient opportunity to read this entire document … understand this Agreement and … voluntarily agree to be bound by its terms.”10 As in Aguillard, there was no evidence that the plaintiff was not in an equal bargaining position with Sky Zone because the plaintiff could have avoided arbitration and the contractual provisions as a whole by simply not signing the Sky Zone Agreement and pursuing an alternative recreational [*33] activity. Also as in Aguillard, there is nothing in the Sky Zone Agreement itself-its physical or distinguishing characteristics-that would call into question the validity of the plaintiff’s consent to the terms of the Sky Zone Agreement as indicated by his signature. I would affirm the decision of the court of appeal.

8 See Duhon, 16-0818, slip op. at 5 (citing La. R.S. 9:4201, et seq.).

9 See Tweedel v. Brasseaux, 433 So. 2d 133, 137 (La. 1983) (quoting Boullt v. Sarpy, 30 La.Ann. 494, 495 (La. 1878)).

10 See Duhon, 16-0818, slip op. at 4.

[Pg 1] GUIDRY, J., dissents and assigns reasons.

I respectfully dissent from the majority’s reversal of the ruling of the court of appeal. In my view, the arbitration clause in the Sky Zone Agreement is not part of a contract of adhesion which would render it unenforceable.

As the majority correctly states, a contract of adhesion is a “standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party.” Aguillard v. Auction Management Corp., 2004-2804, 2004-2857, p.9 (La. 6/29/05), 908 So.2d 1, 8-9. It is undisputed that the real issue in a contract of adhesion analysis is consent, whether the non-drafting party, considered to be the weaker party, truly consented to all the printed terms. Id. In addressing the issue of consent, a court must look to the form, print, or unequal terms [*34] of the contract by considering the factors set forth in Aguillard, namely, the physical characteristics and distinguishing features of the arbitration clause, the relative bargaining position of the parties, and the mutuality or lack thereof in the arbitration clause. Id., 2004-2804, 2004-2857, p. 9, 908 So.2d at 17.

As an initial matter, I disagree with the majority’s finding that the arbitration clause was hidden and camouflaged within the Sky Zone Agreement in such a way that would indicate the plaintiff’s consent to the agreement could be called into [Pg 2] question. Neither the print nor the font size of the arbitration clause differed from that of the remainder of the contract executed by the plaintiff. The standard form agreement was relatively short and straightforward, consisting of a total of nine paragraphs, three of which were set off with boxes to be checked to signify the patron’s consent. The arbitration clause, while not set off alone, consisted of one-half of a paragraph that was required to be checked off. The clause commenced midway through the paragraph and ran until the end of the paragraph. The plaintiff does not dispute that he checked off the box reflecting his consent to the terms of the arbitration [*35] clause.

Furthermore, the record is absent any evidence that the plaintiff was not in an equal bargaining position with the defendants. At the heart of the transaction, the plaintiff was seeking admittance to a recreational facility. Indisputably, this was not a contract to which the plaintiff was compelled to enter into the terms. He could have simply elected to not sign the agreement and bypass the recreational activity. Instead, the plaintiff signed the arbitration agreement acknowledging that he had sufficient opportunity to read the entire document and understood its terms. Having signed the agreement, the plaintiff cannot seek to avoid his obligations by contending that he did not read or understand it. Basic contract law dictates that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him. Coleman v. Jim Walter Homes, Inc., 2008-1221, p. 7 (La. 3/17/09), 6 So.3d 179, 183 (citing Tweedel v. Brasseaux, 433 So.2d 133, 137 (La.1983)). To overcome the presumption, the party has the burden of proving with reasonable certainty that he was deceived. Id. The plaintiff is unable to satisfy this burden, because there is no evidence in the record that [*36] the plaintiff made any effort to contact the defendant for an explanation or to discuss the terms of the contract in [Pg 3] any respect.

Next, the arbitration clause at issue substantially mirrors the Aguillard arbitration clause, which this court found to be mutual. The plaintiff has not shown anything in the clause that reserves Sky Zone’s right to litigate disputes related to the agreement that is not equally afforded to the plaintiff. As such, the majority errs in finding the lack of mutuality as to the parties.

Finally, in Aguillard, this court addressed the presumption of arbitrability:

[E]ven when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Therefore, even if some legitimate doubt could be hypothesized, this Court, in conjunction with the Supreme Court, requires resolution of the doubt in favor of arbitration.

Id., 04-2804 at 18, 908 So.2d at 18.

Id., 04-2804 at 18, 908 So.2d at 25. In light of the controlling law indicating [*37] the favorable consideration afforded arbitration agreements, coupled with the plaintiff’s failure to satisfy his burden of proving the contract was adhesionary, the majority erred in invalidating the contract. Accordingly, I respectfully dissent and would affirm the ruling of the court of appeal.


Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

Ronald D. Corwin, et al., Plaintiffs, -against- NYC Bike Share, LLC, et al., Defendants.

14-CV-1285 (SN)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

March 1, 2017, Decided

March 1, 2017, Filed

SUBSEQUENT HISTORY: Reconsideration denied by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 53812 (S.D.N.Y., Apr. 7, 2017)

Summary judgment granted by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 57254 (S.D.N.Y., Apr. 13, 2017)

CORE TERMS: bike, station, wheel, helmet, bicycle, summary judgment, street, cyclist’s, parking, user, roadway, lane, public policy, matter of law, traffic, wear, installation, riding, notice, negligence claims, qualified immunity, affirmative defenses, municipality, contractor, installed, recreational, planning, genuine, rider, safe

COUNSEL: [**1] For Ronald D. Corwin, Beth Blumenthal, Plaintiffs: Martin William Edelman, LEAD ATTORNEY, Edelman & Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT; Neil R. Finkston, Law Office of Neil R. Finkston, Great Neck, NY.

For NYC Bike Share LLC, Alta Bicycle Share, Inc., Defendants, Cross Claimants, Cross Defendants: Peter W. Beadle, Law Offce of Vaccaro & White, LLP, New York, NY; Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.

For City of New York, Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Howard Martin Wagner, Trief and Olk, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.

For Alta Planning + Design, Inc., Alta Planning Design Architecture of New York, PLLC, Defendants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY; Katherine Buchanan, The Law Firm of Hall & Hall, LLP, Staten Island, NY.

For MetroExpress Services, Inc., Defendant: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For Sealcoat USA, [**2] Inc., Defendant, Cross Defendant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY; Brian L. Battisti, Morrison Mahoney, LLP(NYC), New York, NY.

For Sealcoat USA Inc., ADR Provider: Mitchell John Baker, LEAD ATTORNEY, Baker, Leshko, Saline & Blosser, LLP, White Plains, NY.

For Metro Express, Inc., Interested Party: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For New York City Department of Transportation, Cross Claimant, Cross Defendant: Kimberly Kristen Brown, Hoey, King,Epstein, Prezioso & Marquez, New York, NY.

For NYC Bike Share LLC, Cross Claimant, Cross Defendant: Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.

For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY.

For Alta Planning Design, Inc., Alta Planning Design Architecture of New York, PLLC, Cross Claimants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY.

For Beth Blumenthal, Cross Defendant: Martin William Edelman, LEAD ATTORNEY, Edelman & [**3] Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT.

For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.

For MetroExpress Services, Inc., MetroExpress Services, Inc., Cross Defendant, Cross Claimants: Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For Sealcoat USA, Inc., Cross Claimant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY.

JUDGES: SARAH NETBURN, United States Magistrate Judge.

OPINION BY: SARAH NETBURN

OPINION

[*480] OPINION & ORDER

SARAH NETBURN, United States Magistrate Judge:

On October 25, 2013, Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging [*481] that the Citi Bike station in question was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and [**4] professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.1

1 As Blumenthal’s claims depend entirely on the viability of Corwin’s causes of actions, the two claims are referred to in shorthand as “Corwin’s” throughout the text of the opinion. Where the Court grants summary judgment or partial summary judgment to defendants on certain of Corwin’s claims, Blumenthal’s claims are dismissed as well. Vega-Santana v. Nat’l R.R. Passenger Corp., 956 F. Supp. 2d 556, 562 (S.D.N.Y. 2013) (“Where the primary cause of action is dismissed on summary judgment, the loss of consortium claim must be dismissed as well.”).

On February 27, 2014, Corwin brought claims against three defendants: the City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program; NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system, and the New York City Department of Transportation (“DOT”). ECF No. 1, Compl. On December 31, 2014, Corwin amended his complaint to remove the DOT and add three additional defendants: Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company; and Alta Planning + Design (“APD”) and Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system. ECF No. 27, First Am. Compl. After conducting significant discovery, Corwin moved for and was granted leave to amend his complaint to join two additional defendants, Metro Express Services, Inc. (“Metro Express”) and Sealcoat USA, Inc. (“Sealcoat”), both contractors who are [**5] alleged to have participated, in violation of the station’s design plan, in the installation of the wheel stop struck by Corwin. ECF No. 192, Second Am. Compl.

All of the defendants move separately for summary judgment on a variety of grounds.2 All defendants argue that the condition was open and obvious and that Corwin’s negligence claims generally fail as a matter of law. The City, NYCBS, and APD argue that Corwin’s common-law negligence claims were released by the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”) that he had to sign as a condition of Citi Bike membership, and that they are barred by the doctrine of primary assumption of the risk. APD, Metro Express and Sealcoat argue that, as third-party entities in a contractual relationship with Corwin, they owed him no duty of care. APD additionally argues that the Citi Bike station’s deviation from the design is an absolute bar to liability, and that there was no causation between its design and Corwin’s injury. The City also contends that Corwin’s claims are barred due to the doctrine of qualified immunity and its lack of written notice of the condition pursuant to a municipal notice statute.

2 As their liability is exclusively a product of being a parent company of a wholly owned subsidiary, Alta Bicycle Share, Inc./Motivate, Inc. moves for summary judgment together with NYCBS, and APD moves together with APDNY. For the sake of brevity, these motions are referred to as the “NYCBS” and “APD” motions, respectively.

For his [**6] part, Corwin moves for partial summary judgment on two issues. First, he argues that the Release Agreement is unenforceable on numerous statutory, public policy, and contract formation grounds, and that defendants’ affirmative defenses [*482] relying on the Agreement should be dismissed as a matter of law. Second, he contends that the fact that he was not wearing a helmet at the time of the accident is irrelevant as a matter of law to issues of assumption of the risk, comparative fault, or failure to mitigate damages, and therefore defendants’ affirmative defenses relying on this argument should be dismissed.

For the following reasons, the cross-motions for summary judgment are GRANTED in part and DENIED in part. Corwin’s motion to dismiss defendants’ affirmative defenses relying on the Release Agreement is DENIED as to NYCBS; the Agreement is enforceable as a matter of law as to NYCBS. Corwin’s motion to dismiss the affirmative defenses relating to the Release Agreement is GRANTED as to the City because a contractual waiver of the City’s non-delegable duty to maintain public thoroughfares would be contrary to public policy. Corwin’s motion to dismiss defendants’ affirmative defenses relating [**7] to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED; as stated above, the Release Agreement is ineffective to waive Corwin’s claims at to the City, and the City has not demonstrated its entitlement to judgment as a matter of law on qualified immunity, notice, or other grounds. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable as to NYCBS, Corwin’s common-law negligence claims are barred, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED because APD and APDNY did not owe any duty to Corwin. Accordingly, APD and APDNY are dismissed from this case. Metro Express and Sealcoat’s motions for summary judgment are DENIED because a genuine dispute of material fact exists as to whether they owed Corwin a duty of care under applicable New York law.

BACKGROUND

I. History of the Citi Bike Program

Beginning in 2009, the City of New [**8] York began to study the feasibility of installing a bike share system in and around City streets, located in curbside parking lanes, on sidewalks, and near public spaces and parks. ECF No. 293, City’s Rule 56.1 Statement (“City St.”) ¶ 2. On April 10, 2012, the City and NYCBS entered into an agreement for the design, construction, operation, maintenance, and publicizing of “Citi Bike,” a network of self-service bike share stations with publicly available bicycles. ECF No. 310, Corwin’s Rule 56.1 Statement (“Corwin St.”) ¶ 2. The system became operational in May 2013. City St. ¶ 5; ECF No. 317, NYCBS’s Rule 56.1 Statement (“NYCBS St.”) ¶ 1.

The City-NYCBS contract required NYCBS to design and install on-street bike parking stations “with appropriate protections and markings from adjacent parking and moving traffic. . . . [including] non-permanent bollards and paint markings.” City St. ¶ 31. The contract also noted that all protections and markings were to be preapproved by the DOT’s Division of Traffic. Id.

The design for the Citi Bike stations was modeled in part on the City’s previous experience with “bike corrals,” which were also placed in parking lanes and were designed by the DOT’s Highway Design Unit and [**9] Pedestrian and Bicycle Group. City St. ¶¶ 41-42. These corrals had many elements that would ultimately be integrated [*483] into the Citi Bike stations, such as wheel stops, paint marking and bollards. Id. ¶ 42.

At the time that the NYCBS contract was signed with the City, APD and APDNY were subsidiaries of Alta Bicycle Share, Inc., NYCBS’s parent company. Id. ¶ 48. APD assembled a team of architects, engineers, and designers to collaborate with the City on station design. Id. ¶¶ 49-50. Using a bike corral on Smith and Sackett Street as an exemplar, the APD and the City developed “Station Siting Guidelines” that included the use of unpainted, concrete wheel stops. Id. ¶¶ 51-57. Though the City originally approved the use of rubber wheel stops, it instructed NYCBS to replace them with concrete wheel stops because the rubber stops were not sufficiently durable. Id. ¶ 96. The wheel stops were considered by APD to be necessary to prevent damage to the station equipment by encroaching vehicles. Id. ¶ 58.

The final design for Citi Bike stations situated in parking lanes included white thermoplastic markings and three-foot tall, reflective, flexible delineators on or near the markings. Wheel stops [**10] were to be used in the stations to protect the station equipment. Id. ¶¶ 64-66. These elements were collectively referred to as “street treatment.” Id. ¶ 81. While NYCBS installed the station equipment directly, it contracted the installation of street treatment to Metro Express, allegedly without the City’s awareness. Id. ¶ 83. MetroExpress, in turn, subcontracted this work to another entity, Sealcoat, allegedly without the awareness of either the City or NYCBS. Id. ¶¶ 85-86.

The City considered, but chose not to mandate that Citi Bike riders wear helmets. It also did not provide helmets for Citi Bike riders on demand. Id. ¶ 8. The City came to this conclusion because (a) New York law did not mandate that adult cyclists wear helmets and it did not want to promote different standards for Citi Bike riders and other cyclists as a matter of public policy; (b) it believed, based on studies conducted in other cities, that mandatory helmet laws decreased bicycle ridership in general and bike share system use in particular; (c) certain statistics indicated that mandatory helmet laws actually decreased cyclist safety by reducing the number of cyclists on the road; and (d) research suggested [**11] that helmeted cyclists tended to ride more recklessly than those without helmets. Id. ¶¶ 9-16; Corwin St. ¶ 10. The City also specifically evaluated the feasibility and wisdom of instituting a public helmet distribution system, but ultimately concluded that there were numerous logistical barriers to such a system, such as hygiene, the fact that the structural integrity of helmets would be compromised if they were involved in an accident, and lack of proper fitting and sizing capabilities. City St. ¶¶ 18-22. The City further considered what it viewed as unfavorable experiences with such systems in Seattle, Boston, and Melbourne, Australia. Id. ¶ 25. The City did, however, provide annual Citi Bike members with discounted vouchers for helmets and expanded its helmet giveaway and fitting programs. Id. ¶¶ 27-28.

II. Design and Installation of Citi Bike Station on East 56th Street and Madison Avenue

The station where Ronald Corwin’s accident occurred was located at the intersection of East 56th Street and Madison Avenue. Id. ¶ 98. The City issued a permit to NYCBS for the installation of the station on July 22, 2013, and the station equipment was installed on July 30, 2013. Id. ¶¶ 103-04. [**12] The City approved APD’s design drawing of the station on August 6, 2013, including all street treatment. Id. ¶ 100. The approved design had only one wheel stop at the west end of the station, [*484] no thermoplastic striping within the boxes at the ends of the station, a station width of eight feet, and a total of six delineators. ECF No. 301, Alta Planning and Design Rule 56.1 Statement (“APD St.”) ¶ 30. None of the site plan drawings, including the approved drawing, contained a wheel stop at the east end of the station closest to Madison Avenue.

The street treatment at the East 56th Street and Madison Avenue station was installed on or about October 22, 2013. APD St. ¶ 31. Notwithstanding its absence on the approved plan, a wheel stop was installed at the east end of the station as well, and the station did not conform to the approved plan in several other respects: the station footprint was made wider by the installation of thermoplastic striping more than eight feet in width, additional delineators were added, and cross-hatched striping was installed on either end of the station underneath the wheel stops. Id. ¶ 34. Though this is disputed by the defendants, Corwin argues that the wider footprint [**13] is relevant because, as it provided less clearance between the edge of the station and moving traffic, it would have encouraged a cyclist to use the station itself as a temporary riding lane. ECF No. 335, Decl. of Pl.’s Exp. James E. Green, ¶¶ 56-58. The City denies approving the installation of a second wheel stop at this site, and claims that its records do not show that it had written notice regarding the additional wheel stop. City St. ¶¶ 102, 106, 108.

The entity responsible for installing the wheel stop is contested; Metro Express and Sealcoat contend that an October 18, 2013 email from NYCBS informed them only of the need for repairs to the station, and that after Sealcoat representative Ryan Landeck visited the station on October 22, 2013, he reported that there was nothing to be done at the station in a October 24, 2013 email to Metro Express. ECF No. 368-3, Landeck Depo. at 41, 51; ECF No. 368-4, Landeck Oct. 24, 2013 E-mail. Metro Express further contends that the City had often instructed NYCBS, who in turn had instructed Metro Express to install “Supplemental Street Treatments” not depicted on station plans, and that such supplemental installations included second wheel [**14] stops. ECF No. 368-8, May 17, 2013 Email; ECF No. 335-20, Strasser 06/28/16 Depo. at 48-51. Metro Express alleges that on July 17, 2013, and October 9, 2013, it was specifically ordered by NYCBS to install a second wheel stop not depicted on station plans at three stations around the network. ECF 368-10; 368-11; 368-12; 368-13; 368-14. There is no direct evidence in the record, however, that such a request was ever issued for the East 56th Street and Madison Avenue station.

III. Ronald Corwin’s Citi Bike Membership and Release Agreement

Ronald Corwin signed up online for an annual Citi Bike membership on June 25, 2013. Corwin St. ¶ 15. Corwin does not remember the details of the process, and did not recall clicking on or reading the Bicycle Rental, Liability Waiver, and Release Agreement as a condition of membership. Id. ¶ 18. Nevertheless, he did admit in deposition testimony that “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike Pass.” NYCBS St. ¶ 21. NYCBS has not, however, produced a version of the Agreement dated contemporaneously to Corwin’s registration, or Corwin’s actual electronic signature. Corwin St. ¶ 22.

While the applicability and enforceability [**15] of the Release Agreement is disputed by the parties, there is no serious dispute as to its content. NYCBS has produced an agreement dated July 25, 2014, and Justin Ginsburgh, former General Manager of [*485] NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, testified that this agreement was active on the date that Corwin became a member. ECF No. 316, Ginsburgh Decl. ¶¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl. ¶¶ 2-3; ECF 316-1, Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). Ginsburgh attested that it would be impossible to become a Citi Bike member without first being shown the Release Agreement in a scrollable text box and then clicking a box stating “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in (sic) User Agreement.” NYCBS St. ¶¶ 17-18; City St. ¶¶ 118-20.

The Release Agreement contains several provisions, which are reproduced below in relevant part:

Section 6. Releases:

In exchange for You being allowed to use any of the Services, Citi Bike bicycles, Stations, Bike Docks, or related information, You . . . do hereby fully and forever release [**16] and discharge all Released Persons for all Claims that You have or may have against any Released Person, except for Claims caused by the Released Person’s gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended 3rd beneficiaries of such releases.

“Claims” is defined in the Release Agreement as “any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings [or] damages that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information . . . .” “Released Persons” is defined in the Agreement, as relevant, as including: “(i) NYCBS and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns [and] (ii) the City of New York.”

Section 7. Disclaimers:

You do hereby acknowledge and agree that your use of any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, is at your sole risk. . . . [**17] All of the services, Citi Bike bicycles, stations, bike docks, or related information are provided “as is” and “as available” (and you rely on them solely at your own risk). . . . You assume full responsibility and risk of loss for using any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, and NYCBS and all other released persons are not liable for any claim attributable to any of the foregoing.

Section 8. Limited Liability:

You do hereby acknowledge and agree that, except as may otherwise be limited by New York General Obligation Law Section 5-326, NYCBS and all other released persons are not responsible or liable for any claim, including those that arise out of or relate to (A) any risk, danger or hazard described in the Agreement, (B) Your use of or inability to use, any of the services, Citi Bike bicycles, stations, bike docks, or releated (sic) information, (C) your breach of this agreement or your violation of any law, (D) any negligence, misconduct, or other action or inaction by you, (E) your failure to wear a bicycles helmet while using Citi Bike bicycle, or (F) any negligence, misconduct, or other action or inaction of any third party. You do hereby waive all claims with respect to any [**18] [*486] of the foregoing, including those based in contract, tort (including negligence), statutory, or other grounds, even if NYCBS or any of the other released persons has been advised of the possibility of such claims. The total liability of NYCBS and all other released persons for all claims, including those based in contract, tort (including negligence), statutory, or other grounds, is limited to the sum of $100.

Section 9. Assumption of Risk by Member:

Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to Member or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.

IV. Ronald Corwin’s Ride and Accident

At 10:57 a.m. on October 25, 2013, Ronald Corwin picked up a Citi Bike at a station located on the southeastern corner of 6th Avenue and East 56th Street. From there, he travelled in the direction of Grand Central Station. Corwin St. ¶ 25; NYCBS St. ¶ 32. He was not wearing a helmet. Corwin St. ¶ 26; City St. ¶ 137. Corwin proceeded eastbound in the [**19] traffic lane on East 56th Street, with vehicular traffic proceeding to his left. NYCBS St. ¶ 34. Because Corwin claimed to have been “under pressure” from the vehicular traffic, he turned into the Citi Bike station on East 56th Street and Madison Avenue. Id. ¶ 35. The station area was indicated by a perimeter of 4 inch white thermoplastic stripes on the asphalt roadway, and three foot tall white flexible delineators with gray reflective tape spaced approximately every 10 feet along the thermoplastic striping. Id. ¶ 36. At either end of the station, unpainted concrete wheel stops measuring 5 feet, 10.5 inches long by five inches high, were installed on the roadway. Id. ¶ 40. These wheel stops were framed by a box of white thermoplastic striping with diagonal cross-hatching, staked out by three-foot tall flexible delineators. Id. ¶ 41. While he was travelling within the station “envelope,” the front wheel of Corwin’s Citi Bike hit the concrete wheel stop installed near the crosswalk at the Madison Avenue end of the station, causing him to crash onto the pavement and sustain serious injury. Corwin St. ¶ 26.

ANALYSIS

I. Standard of Review

Under Federal Rule of Civil Procedure 56(a), the court “shall grant summary judgment if [**20] the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party bears the initial burden of establishing that there are no material facts in dispute and must provide “affirmative evidence” from which a factfinder could return a verdict in its favor. Id. at 257. Then “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to [*487] deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1224 (2d Cir. 1994).

In determining whether summary judgment is appropriate, the court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference [**21] could be drawn in favor of the nonmoving party. . . .” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). To create a disputed fact sufficient to deny summary judgment, the non-moving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible. . . .” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Instead, the response “must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation and internal quotation marks omitted).

II. Waiver and Release

It is undisputed that in order to become a member of Citi Bike, Corwin would have been required to assent to a release of claims as set forth in the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). This Agreement covered “any and all claims, injuries, demands, liabilities, causes of action (including statutory, contract, negligence, or other tort theories) . . . that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information or (b) Your use of any of the foregoing.” It required Corwin to “discharge all Released Persons for all Claims that You have or may have against any Released Person, except [**22] for Claims caused by the Released Person’s gross negligence or willful misconduct.” ECF 316-1, Release Agreement. As relevant here, the Agreement expressly included NYCBS and the City of New York, as well as all of NYCBS’s “owners, managers, affiliates, employees, agents, representatives, successors, and assigns” within the definition of “Released Persons.” Id.

Corwin moves for partial summary judgment to strike the City and NYCBS’s affirmative defenses based on the Release Agreement, arguing that the Agreement is ambiguous, contrary to law, and/or void as a matter of public policy. For their part, the City and NYCBS move for summary judgment arguing that Corwin’s negligence claims against them are waived by the release, with the exception of those sounding in gross negligence. Though it is not expressly named in the release, APD also argues that the claims against it are released because of its relationship to NYCBS.

As a threshold issue, the Court considers if there is a genuine dispute as to whether Corwin signed a release and, if so, its scope. Corwin argues that because defendants have failed to produce an actual copy of the Release Agreement with his electronic signature, or a [**23] copy of the Agreement as it existed when he became an annual member, defendants cannot demonstrate that he signed the waiver at all. Defendants have produced a declaration from Justin Ginsburgh, former General Manager of NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, that describes the membership process and states that Corwin would have [*488] had to agree to the terms of the Agreement in order to become a member. ECF No. 316, Ginsburgh Decl., ¶¶ 7-9. Ginsburgh also declares that the Release Agreement appended to his declaration, dated July 15, 2014, was a “true and complete copy of the User Agreement that was in effect in May 2013 when Mr. Corwin became a Citi Bike member.”3 Id. at ¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl., ¶¶ 2-3 (“The User Agreement . . . was fully in effect when plaintiff Ronald Corwin obtained his Citi Bike membership on June 25, 2013.”). Ginsburgh had previously noted in deposition testimony, however, that he was no longer in his General Manager position as of April 1, 2014, and therefore “[didn’t] know if any changes occurred [to the membership signup] after that.” ECF No. 360-6, Justin Ginsburgh Depo. [**24] at 463. Corwin stated in deposition testimony that he completed the membership application and “signed whatever it is [he] had to sign in order to get [his] Citi Bike pass,” but did not remember the contents of the Agreement or whether he had read it. ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.

3 The first Ginsburgh Declaration inaccurately references Corwin becoming a Citi Bike member in May 2013; in fact, Corwin became a Citi Bike member on June 25, 2013.

Corwin has failed to “set forth specific facts demonstrating that there is a genuine issue for trial,” Wright, 554 F.3d at 266, as to the existence and scope of the Agreement. Defendants have produced declaration testimony from Justin Ginsburgh, and Corwin has challenged the credibility of those statements. He has not, however, despite extensive discovery, introduced any evidence that there was an agreement with different terms in effect when Corwin became a Citi Bike member, or even any evidence that raises doubt as to whether the Agreement provided by defendants was in effect. Nor has Corwin provided any evidence that he was somehow able to sign up for his Citi Bike membership without following the process described by Ginsburgh, which required him to manifest assent to the Release Agreement. Therefore, Corwin has failed to raise a genuine dispute of material fact regarding the existence of a contract between [**25] the parties. Accordingly, whether or not Corwin’s claims are barred by the Release Agreement shall depend solely on the effectiveness of Corwin’s assent under the circumstances, and the enforceability of the waiver provisions as to the various defendants.

A. Unconscionability Analysis in Online “Clickwrap” Contracts

The first question for the Court’s consideration is whether, absent any overarching questions of statutory or common law public policy, the contract is enforceable on its own terms or whether, as Corwin argues, it is an “unconscionable and unenforceable contract of adhesion.” A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10, 534 N.E.2d 824, 537 N.Y.S.2d 787 (1988) (internal quotation marks and citations omitted); see also Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 207 (2d Cir. 1999).

The parties agree that the contract in question is a “clickwrap” agreement. Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of [*489] service. “[U]nder a clickwrap arrangement, [**26] potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2d Cir. 2004). Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.'” Meyer v. Kalanick, No. 15-CV-9796 (JSR), 199 F. Supp. 3d 752, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *6 (S.D.N.Y. July 29, 2016) (citing Cullinane v. Uber Techs., Inc., No. 14-CV-14750 (DPW), 2016 U.S. Dist. LEXIS 89540, 2016 WL 3751652, at *6 (D. Mass. July 11, 2016)). While the Court of Appeals has not categorically ruled on the issue, it has strongly implied that such contracts are presumptively enforceable. See, e.g., Starkey v. G Adventures, Inc., 796 F.3d 193, 197 (2d Cir. 2015) (noting that case would have been “simpler to resolve had [defendant] used a ‘clickwrap’ mechanism to provide reasonable notice and to obtain [plaintiff’s] assent”). Accordingly, most lower courts have enforced such contracts, absent extraordinary circumstances. See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 397 (E.D.N.Y. 2015) (collecting cases); Centrifugal Force, Inc. v. Softnet Commc’n, Inc., No. 08-CV-5463 (CM), 2011 U.S. Dist. LEXIS 20536, 2011 WL 744732, at *7 (S.D.N.Y. Mar. 1, 2011) (“In New York, clickwrap agreements are valid and enforceable contracts.”).

Nevertheless, a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability [**27] of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind themselves to contract terms.” Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002) (Sotomayor, J.). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways.” Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *8.

In Berkson, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide this inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement. Berkson, 97 F. Supp. 3d at 401 (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014)). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink. Id. (citing Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-CV-7654 (HLH), 2003 U.S. Dist. LEXIS 6483, 2003 WL 21406289, at *2 (C.D. Cal. Mar. 7, 2003)). Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” Id. at 401-02 (collecting cases refusing to enforce such agreements). Special attention [**28] should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. Id. at 402; see also Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *10 (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text [*490] about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted). Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.

In this case, NYCBS represents that “before the prospective member can proceed to pay for the membership, each person is shown the . . . ‘User Agreement.’ The User Agreement is displayed on the page in its own scrollable text box, which may also be opened in a new window for ease [**29] of viewing and printing.” ECF No. 316, Ginsburgh Decl., at ¶ 7. The “continue” button allowing Corwin to provide his payment information would not activate until Corwin clicked on a statement reading “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in [sic] User Agreement.” Id. at ¶¶ 8-9; Release Agreement, ECF No. 316-1 at 56. The Release Agreement itself, roughly 10 pages in length, contained a bold-faced and underlined section in larger font titled “Releases; Disclaimers; Limited Liability; Assumption of the Risk.” The text of the sections in question are in normal-sized font. Though Corwin stated that he had no specific recollection of reading and signing the Release Agreement, he did admit “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike pass.” ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.

Applying the considerations in Berkson, the Release Agreement is enforceable. The full scrollable text of the agreement was available on the same page a user must utilize to register, requiring no clicking of hyperlinks, and the user cannot continue to input his payment information until [**30] he signals assent to the agreement by taking the affirmative step of clicking a box. While it is possible to imagine clearer signaling of the importance of the waiver provisions to an unwary or unsophisticated consumer, the terms are not hidden or buried in an obscure part of the website, but rather are in plain view. Accordingly, the Release Agreement is not unconscionable, and Corwin is not entitled to strike the City and NYCBS’s affirmative defenses on this basis.

B. Ambiguity

To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims. See, e.g., Spancake v. Aggressor Fleet Ltd., No. 91-CV-5628 (DLC), 1995 U.S. Dist. LEXIS 7319, 1995 WL 322148, at *4 (S.D.N.Y. May 26, 1995). Corwin argues that the waiver is unenforceable due to ambiguity, finding a conflict between Section 8 (“Limited Liability”), which purports to release defendants from claims arising from riders’ “failure to wear a bicycle helmet while using a Citi Bike bicycle,” and Section 5, which does not list failing to wear a helmet as one of 11 “Prohibited Acts.” ECF 316-1, Release Agreement.

There is plainly no contradiction between Section 5 and Section 8. Section 5 lists actions, such as defacing a Citi Bike bicycle, transferring a bicycle to a non-member, or using a cellphone while riding that [**31] could presumably lead to contractual consequences for the member. Not wearing a helmet is not prohibited, which is also consistent with New York law allowing adult cyclists to ride without a helmet. See infra Part III.

Section 8 instead provides a non-exhaustive list of circumstances for which the [*491] contract seeks to limit liability. On its face, the fact that this list is not identical to that in Section 5 presents no contradiction, as they are presented for entirely different purposes.4 Moreover, the examples in Section 8 are meant only to illustrate some of the circumstances under which liability is to be limited; the section refers to limited liability for “any claim, including those that arise out of or relate to . . . your failure to wear a bicycle helmet while using Citi Bike bicycle.” Id. (emphasis added).

4 On wholly separate grounds, in Part III of its opinion, the Court grants Corwin summary judgment on Defendants’ affirmative defenses that Corwin’s failure to wear a bicycle helmet relieves them of liability because as a matter of New York law, the failure to wear a helmet goes only to the question of mitigation of damages. This does not, however, affect the clear and unambiguous nature of the waiver provisions.

As such, the Release Agreement is not void due to ambiguity.

C. Unenforceability on Public Policy Grounds

New York law “frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny.” Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979). Therefore, an exculpatory contract must express “in unequivocal terms the [**32] intention of the parties to relieve a defendant of liability for the defendant’s negligence.” Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); Roane v. Greenwich Swim Comm., 330 F. Supp. 2d 306, 321 (S.D.N.Y. 2004) (finding that appearance of the actual word “negligence” was significant in determining whether exculpatory contract was to be enforced). But “even an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced . . . if it is found to violate public policy . . . .” Ash v. New York Univ. Dental Ctr., 164 A.D.2d 366, 369, 564 N.Y.S.2d 308 (1st Dep’t 1990).

Public policy “is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Lubov v. Horing & Welikson, P.C., 72 A.D.3d 752, 753, 898 N.Y.S.2d 244 (2d Dep’t 2010) (citation omitted); see also Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216, 222, 872 N.Y.S.2d 578 (3d Dep’t 2009) (defining New York public policy as “the law of the [s]tate, whether found in the Constitution, the statutes or judicial records”) (citation omitted). Parties may, however, “agree to give up statutory or constitutional rights in a contract, as long as public policy is not violated.” J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 113, 119, 980 N.E.2d 940, 957 N.Y.S.2d 275 (2012).

Corwin argues that the Release Agreement violates three sources of public policy–New York City Administrative Code § 19-110, which provides that municipal permit holders may be held liable for their own negligence, New York General Obligations Law § 5-326, which invalidates exculpatory clauses in agreements with operators of recreational facilities, and [**33] the City’s non-delegable common-law duty to maintain the public streets.

i. New York City Administrative Code § 19-110

New York City Administrative Code (“NYCAC”) § 19-110 reads:

Liability for damage. In all cases where any person shall engage in any activity for which a permit is required pursuant to [the subchapter concerning streets [*492] and sidewalks], such person shall be liable for any damage which may be occasioned to persons, animals, or property by reason of negligence in any manner connected with the work.

Corwin argues that this statute represents a “public policy” intended to provide a “statutory remedy” against all persons who negligently perform work subject to the issuance of a permit. He notes that there was no explicit reference to waiving any rights or remedies under NYCAC § 19-110 in the Release Agreement, but even if there were, such a waiver would be unenforceable because of an alleged public policy to protect the public and ensure a remedy against any person acting under a permit to individuals injured by their negligence.

Case law regarding § 19-110 (and its predecessor provision, § 19-107) is sparse, and no court has held that § 19-110 provides a statutory right at all–much less a non-waivable statutory right elevated to [**34] the status of public policy. Instead, the available case law deals exclusively with whether the statute can be invoked as a basis for the City to seek indemnification, as opposed to contribution, from a negligent municipal contractor. See City of New York v. Consol. Edison Co., 198 A.D.2d 31, 31-32, 603 N.Y.S.2d 47 (1st Dep’t 1993) (finding that statute did not provide a basis for indemnification, but rather only that a contractor was responsible for its own negligence); Petrucci v. City of New York, 167 A.D.2d 29, 34, 569 N.Y.S.2d 624 (1st Dep’t 1991) (concluding that statute did not provide a basis for indemnification of the City, but only an “intent to render the contractor responsible for those damages actually caused to injured third parties or property by its own negligence or carelessness”); Libardi v. City of New York, 201 A.D.2d 539, 540-41, 607 N.Y.S.2d 717 (2d Dep’t 1994) (same).

This limited case law appears to do no more than clarify, in line with common-law negligence principles, that the City may seek contribution for damages to third parties occasioned by a negligent contractor or property owner conducting work pursuant to a municipal permit. It is plainly insufficient to constitute an overarching public policy guaranteeing Corwin the right to sue any contractor notwithstanding a contractual waiver. Indeed, Corwin has cited no case in which the statute was interpreted to provide a plaintiff a private right of action or a “statutory [**35] remedy” differing in any way from a common-law negligence claim. Accordingly, NYCAC § 19-110 cannot serve as a basis for invalidating the Release Agreement.

ii. New York General Obligations Law § 5-326

New York has a statutory restriction that invalidates exculpatory clauses or agreements between users and owners and operators of recreational facilities. N.Y. General Obligations Law (“GOL”) § 5-326 provides:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be [*493] deemed to be void as against public policy and wholly unenforceable.

The Release Agreement explicitly refers to this statute, noting that Released Persons are not “responsible or liable . . . except as may [**36] otherwise be limited by New York General Obligations Law 5-326.” ECF No. 316-1.

In order for GOL § 5-326 to apply, the plain text of the statute indicates that the agreement in question must (1) be made between a user and an owner or operator of a “place of amusement or recreation” or “similar establishment,” and (2) a fee or other compensation must be paid for “use” of a “facility” covered by the statute. Courts that have considered situations where equipment was rented and taken out of the control of the facility owner or operator have additionally considered whether the owner or operator exercised a substantial level of control over the environment in which the recreational activity takes place. See, e.g., Dumez v. Harbor Jet Ski, Inc., 117 Misc. 2d 249, 250, 458 N.Y.S.2d 119 (Sup. Ct. Niagara Cty. 1981).

Corwin argues that the Citi Bike program was primarily, or at the very least, substantially, a “recreational” program, and that the defendants’ business plan presupposed a significant number of daily and recreational users. He cites to a state court proceeding in which a neighborhood association challenged the installation of a Citi Bike station in a public park on the grounds that it was purely a commuter program. There, the City argued and the court held that the program fulfilled a valid recreational purpose. Friends of Petrosino Square v. Sadik-Khan, 42 Misc. 3d 226, 977 N.Y.S.2d 580 (Sup. Ct. N.Y. Cty. 2013), aff’d, 126 A.D.3d 470, 5 N.Y.S.3d 397 (1st Dep’t 2015). Therefore, [**37] according to Corwin, because the Citi Bike rental station where the accident occurred was a “place of recreation,” and he paid a fee to access the facility in the form of his annual membership, GOL § 5-326 operates to invalidate the exculpatory clause in the contract.5

5 Corwin also argues that the express language in the Release Agreement referencing GOL § 5-326 operates as an admission that negligence claims stemming from Citi Bike are not waivable and “is compelling proof of defendants’ recognition that [the] waiver is void.” ECF No. 361, Pl.’s Reply Mem. at 8. This is incorrect. Rather, the reference to GOL § 5-326 is plainly to ensure that the waiver provisions are not overbroad, putting users on notice that any such claims, were they to exist, would not be waived. It is not an admission that such claims actually could exist, or that in this case they do exist.

While the parties may dispute whether Corwin’s fateful Citi Bike ride was “recreational” in character, it is clear that the applicability of GOL § 5-326 cannot possibly turn on whether the given individual was using the bicycle recreationally or for commuting purposes. Defendants, moreover, argue that the statute does not apply because the membership fee does not entitle the user access or use of any physical facility; the fee is solely for the rental of a bike, while any individual is free to traverse the Citi Bike stations or New York City streets.

Several New York courts have held that GOL § 5-326 does not apply to accidents occurring on publicly accessible roadways, trails, or fields. See Deutsch v. Woodridge Segway, LLC, 117 A.D.3d 776, 777, 985 N.Y.S.2d 716 (2d Dep’t 2014) (statute not applied to plaintiff who rented a Segway vehicle and was taken on defendant-guided tour of muddy public trail “because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission [**38] fee for the use of the public trail over which the tour was conducted”); [*494] Brookner v. N.Y. Roadrunners Club, Inc., 51 A.D.3d 841, 842, 858 N.Y.S.2d 348 (2d Dep’t 2008) (statute not applied to marathon runner because entry fee “was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run” and “public roadway in Brooklyn where the plaintiff alleges he was injured is not a ‘place of amusement or recreation'”); Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d 758, 758, 673 N.Y.S.2d 181 (2d Dep’t 1998) (statute not applied to cyclist on paid bike tour “since the Verrazano Narrows Bridge, where the plaintiff . . . was injured, is not a ‘place of amusement or recreation'”); Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 634, 636 N.Y.S.2d 853 (2d Dep’t 1996) (statute not applied to accident occurring in softball game where no fee was paid to access field).

On the other hand, other courts have applied GOL § 5-326 to certain accidents on publicly accessible roadways, trails, or fields. See Williams v. City of Albany, 271 A.D.2d 855, 856-57, 706 N.Y.S.2d 240 (3d Dep’t 2000) (declining to follow Stuhlweissenburg and invalidating waiver for accident occurring in publicly accessible field for plaintiff playing in privately-operated flag football league); Filson v. Cold River Trail Rides, Inc., 242 A.D.2d 775, 777, 661 N.Y.S.2d 841 (3d Dep’t 1997) (invalidating waiver in horseback-riding accident guided by defendant but occurring on publicly accessible parkland); Wright v. Freeport Hudson Anglers, Inc., 2009 N.Y. Misc. LEXIS 4712 (Sup Ct. Nassau Cnty. Apr. 8, 2009) (invalidating waiver for sea accident occurring in fishing tournament).

In seeking to reconcile [**39] the case law, Defendants point out that every court to consider the applicability of GOL § 5-326 to an accident occurring on a public, paved, urban street has found the statute to be inapplicable. Corwin, for his part, argues that these cases are inapposite because the bike station was not part of a public road at all, but rather a separate “recreational facility” that happened to be located on a public road.6

6 If true, this, of course, would contradict Corwin’s argument that the Release Agreement is unenforceable as to the City because it purports to waive the City’s non-delegable duty to maintain its roads.

Considering the case law and the legislative intent animating the statute, the Court finds as a matter of law that a Citi Bike station is not a “facility” for the purposes of § 5-326. The stations are plainly more properly characterized as storage facilities for bicycles rather than facilities for recreation in and of themselves. Even if riders incidentally enter or pass through the stations on their bicycles, or if the design of the particular bike station that was the site of the accident encouraged riders to pass through it, this does not turn them into “places of amusement or recreation.” Assuming without deciding that Citi Bike is properly characterized as a primarily recreational program, the intended sites for that recreational use are the City’s roadways and bike lanes–the very types of [**40] paved public thoroughfares that courts have held are not “places of amusement or recreation.” See, e.g., Brookner, 51 A.D.3d at 842. Therefore, the station can only be defined in two ways: either it is part of the public road on which riders are meant to engage in recreational activity, or it is a storage facility that is not part of the roadway. Either way, it is not a “place of amusement or recreation” or “similar establishment,” as required to trigger the statute. Accordingly, GOL § 5-326 cannot serve as a basis for invalidating the Release Agreement.

iii. City’s Common Law Duty to Maintain the Roads

New York courts have long held “that a municipality owe[s] to the public the absolute [*495] duty of keeping its streets in a reasonably safe condition.” Friedman v. State, 67 N.Y.2d 271, 283, 493 N.E.2d 893, 502 N.Y.S.2d 669 (1986) (quotations omitted); see also Wittorf v. City of New York., 23 N.Y.3d 473, 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 (2014) (“[A] municipality has a duty to maintain its roads and highways in a reasonably safe condition and liability will flow for injuries resulting from a breach of that duty.”). As this duty has been characterized as “absolute” and “non-delegable” (though subject to the doctrine of qualified immunity, see infra Part IV), Corwin argues that the City’s duty applies to the bike station and wheel stop at issue and cannot be released by means of a private contract. The City [**41] contends that while it does indeed have a duty to maintain public roadways, a contractual waiver of this duty is permissible and would not offend any overarching public policy.

Before considering whether the City’s duty to maintain public roadways may be released by contract to a voluntary participant in a public transportation program such as Citi Bike, the Court must first determine whether the Citi Bike station where Corwin’s accident occurred properly falls within the scope of that duty. Indeed, defendants argue repeatedly that cyclists are not intended to use bike station areas as a travel lane, and that those facilities are intended only for the storage, retrieval, and return of bicycles. They contend that the presence of the concrete wheel stops and surrounding cross-hatching, white thermoplastic striping, and flexible delineators plainly distinguished the bike station from the adjoining roadway, and should have indicated to a cyclist that it was an area in which cycling was not permitted.

In determining the scope of a municipality’s duty, New York courts have generally considered whether the municipality affirmatively undertook to provide an improved area adjacent to the road, [**42] such as a shoulder. If so, it has generally been held to be responsible for its maintenance. See Bottalico v. State, 59 N.Y.2d 302, 305, 451 N.E.2d 454, 464 N.Y.S.2d 707 (1983) (finding highway shoulder to be within scope of duty because it was “both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon”). The touchstone of this analysis is foreseeability. It does not necessarily depend on the reasonableness of a plaintiff’s conduct. A municipality is required to “maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver’s negligence.” Id. at 304; see also Stiuso v. City of New York, 87 N.Y.2d 889, 891, 663 N.E.2d 321, 639 N.Y.S.2d 1009 (1995) (same); Saulpaugh v. State, 132 A.D.2d 781, 781-82, 517 N.Y.S.2d 328 (4th Dep’t 1987) (same).

On the other hand, no duty exists where a paved roadway “is more than adequate for safe public passage and travel beyond those limits is neither contemplated nor foreseeable.” Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 385 N.E.2d 581, 412 N.Y.S.2d 842 (1978) (noting that “utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way . . . [b]ut for the careful driver, the placement of these items near the pavement creates no unreasonable danger”). The courts have repeatedly denied recovery for roadway users whose injury stemmed from the lack of maintenance of areas near the roadway whose use was unforeseeable even in emergencies. [**43] See, e.g., Preston v. State, 6 A.D.3d 835, 836, 775 N.Y.S.2d 115 (3d Dep’t 2004) (no recovery for driver hitting tree seven feet from the edge of the travel line, where “nothing in the record indicat[ed] [*496] that defendant affirmatively took any action to create or maintain the area”); Green v. Cty. of Allegany, 300 A.D.2d 1077, 1077, 752 N.Y.S.2d 487 (4th Dep’t 2002) (no recovery for failure to maintain drainage ditch and culvert headwall); Muller v. State, 240 A.D.2d 881, 882, 658 N.Y.S.2d 727 (3d Dep’t 1997) (no recovery for failure to maintain drainage ditch headwall beyond the traversable shoulder where the “emergency use of such additional area was neither contemplated nor foreseeable”).

The record does not demonstrate that the City actively contemplated that cyclists would be passing through Citi Bike stations; indeed, precisely the alleged failure to contemplate this possibility forms the basis for Corwin’s argument that the City is not entitled to qualified immunity on this issue. The Court does find, however, that the possibility of cyclists passing through Citi Bike stations located in on-street parking lanes was foreseeable. At times, defendants’ representatives have seemed to admit that riding in the parking lane was, if not expressly permitted, at least a common practice of cyclists. ECF No. 335-24, Jon Orcutt 09/03/15 Depo. at 396-97. (“There are plenty of places with a wide parking lane . . . where [**44] a wide parking lane is kind of implemented as a stealth bike lane.”) This conclusion is buttressed by a brief traffic study conducted by Corwin’s expert, James M. Green. ECF No. 335, Green Decl. ¶¶ 35, 57 (finding that cyclists regularly circulated through the station at issue and arguing that this was a “foreseeable consequence of this Station design,” which was wider and jutted further out into the traffic lane). But even absent the expert’s study, logic dictates that, just as an automobile is not generally permitted to drive on an improved shoulder but may swerve into it (negligently or not) in a situation where the circumstances so require, it is foreseeable that a cyclist such as Corwin may (negligently or not) enter into the Citi Bike station seeking safety when feeling pressured by tight traffic.

This is, perhaps, an imperfect analogy: whereas the express and primary purpose of an improved highway shoulder is to provide a safe outlet for motorists in emergency situations, this is not so for Citi Bike stations, whose primary purpose is the storage, retrieval, and return of bicycles. Nevertheless, the applicable case law does not require that the primary purpose of the improved [**45] space abutting the road be for such emergency uses; as stated above, foreseeability is sufficient to trigger the municipality’s duty. Nor have courts drawn distinctions between motorists and other roadway users; instead, they have found that cyclists may bring claims predicated on state or municipal government’s failure to maintain roadways. See, e.g., Cotty v. Town of Southampton, 64 A.D.3d 251, 255, 880 N.Y.S.2d 656 (2d Dep’t 2009) (primary assumption of risk doctrine “not designed to relieve a municipality of its duty to maintain its roadways in a safe condition . . . and such a result does not become justifiable merely because the roadway happens to be in use by a person operating a bicycle”); Caraballo v. City of Yonkers, 54 A.D.3d 796, 796-97, 865 N.Y.S.2d 229 (2d Dep’t 2008) (“[T[he infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity of recreational noncompetitive bicycling, and using the bicycle as a means of transportation.” (citations omitted)).

Finally, there can be no question that the duty to maintain the roads applies not only to the physical condition of the road itself, but also to the placement of [*497] obstacles or hazards that make use of the road unsafe. Annino v. City of Utica, 276 N.Y. 192, 196-97, 11 N.E.2d 726 (1937) (municipality found liable [**46] for a tripod dangerously placed over a manhole cover so as to constitute a dangerous obstruction); Whitney v. Town of Ticonderoga, 127 N.Y. 40, 44, 27 N.E. 403 (1891) (“[T]he impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway.”).

Accordingly, the Court finds that the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads. Therefore, the Court must now decide whether the City can waive this duty by contract as a condition of participating in the Citi Bike public transportation program.

“[E]ven an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced by the courts . . . if it is found to violate public policy either by way of conflicting with an overriding public interest or because it constitutes an abuse of a special relationship between the parties, or both.” Ash, 164 A.D.2d at 369. Indeed, when choosing to invalidate such clauses, courts have often analyzed the “public interest” and “special relationship” prongs together. See id. at 369-71 (invalidating exculpatory clause between dental clinic and patient both [**47] because of the public interest in protecting the welfare of its citizens and ensuring medical quality and the uniqueness of the physician-patient relationship); Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 247-48, 194 N.E. 692 (1935) (invalidating clause between common carrier and passenger because allowing public service corporations to disclaim all liability for negligence by contract is contrary to public interest, and passengers are not typically given a choice in contracting); Johnston v. Fargo, 184 N.Y. 379, 384-85, 77 N.E. 388 (1906) (invalidating exculpatory clause between employer and employees both because of the state interest in the “maintenance of proper and reasonable safeguards to human life and limb” and the unequal bargaining power between the parties). On the other hand, courts have readily enforced exculpatory clauses in arm’s length commercial transactions between two private parties, see, e.g., Florence v. Merchants Cent. Alarm Co., Inc., 51 N.Y.2d 793, 412 N.E.2d 1317, 433 N.Y.S.2d 91 (1980), when not expressly prohibited by statute.

No case has considered the specific question of whether a municipality’s duty to keep its streets in a reasonably safe condition for travel can be waived by contract. For almost two centuries, however, New York state courts have spoken of an “absolute” duty that could not be delegated to third parties. See Annino, 276 N.Y. at 196 (1937) (“The city owed to the public the absolute duty of [**48] keeping its streets in a reasonably safe condition for travel and was bound to exercise reasonable care to accomplish that end.”) (emphasis added) (citations omitted); Storrs v. City of Utica, 17 N.Y. 104, 108-09 (1858) (finding that municipal corporations “owe[] to the public the duty of keeping its streets in a safe condition for travel” and “although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried on . . . [and cannot] either avoid indictment in behalf of the public or its liability to individuals who are injured.”). The only significant exception to this nondelegable duty is that “it is intended to protect the traveling public”–therefore, [*498] the duty has been held not to extend to injured employees of independent contractors working on road construction projects. Lopes v. Rostad, 45 N.Y.2d 617, 624-25, 384 N.E.2d 673, 412 N.Y.S.2d 127 (1978). In reaching this conclusion, the Lopes court stated that, because the government is responsible for providing the public with roads and highways for travel:

[w]ith this responsibility comes the further obligation to assure, insofar as is reasonably possible, that the thoroughfares of travel will be constructed and maintained in a safe condition. A governmental body would hardly [**49] have fulfilled its responsibility if the roadways it provided for public use were a source of public danger. It is for this reason that “[g]overnments have ever been most zealous to afford special protection to the users of streets, highways and other means of transportation” (1936 Report of NY, Law Rev Comm, p 955).

Id. at 625.

Corwin, a cyclist passing through a bike station located in a parking lane on a public street, falls within the category of those deemed protected by a municipality’s duty to maintain its roadways. While it is certainly understandable that the City would seek to limit its exposure to liability stemming from those using the Citi Bike program, its desire to see this salutary transportation initiative succeed is not sufficiently related to the key, centuries-old public policy of guaranteeing the safety of the users of City streets. It is this public policy that underlies its non-delegable duty to keep streets and roadways safe. The City has designed a public transportation system that involves physical installations in parking lanes on heavily transited streets, and permitted a contractor, NYCBS, to implement and manage that program. Even though the purported liability waiver is confined [**50] to road conditions in the circumscribed area of the bike stations, the Court finds that the enforcement of such a waiver against over a million Citi Bike users is contrary to the public policy that dictates that the City has the duty to guarantee road safety.7

7 The waiver would certainly be effective as to claims unrelated to road conditions, such as, for example, the quality of the bicycles or the malfunctioning of the rental kiosks.

After all, the fact that Corwin was riding a Citi Bike, as opposed to his own bicycle, at the time of his accident was purely coincidental. The City does not articulate any public policy in barring Corwin’s claim but permitting a claim brought by a non-member of Citi Bike who strikes the same wheel stop while riding his own bicycle. There is no basis for immunizing the City from suit by one class of cyclists–who participate in a highly publicized transportation program such as Citi Bike–while allowing non-Citi Bike users to bring suit for the same accident occurring in the same area of the street. Simply put, the law clearly imposes upon the City a duty to ensure road safety for all pedestrians, cyclists, motorists, and road users on all sections of the road that are foreseeably transitable.

At oral argument, counsel for the City indicated that the execution of transportation programs such as Citi Bike would not be feasible without [**51] such waivers of liability. But the City is not left wholly unprotected. As discussed in Parts IV and V of this opinion, the finder of fact may determine that the City is entitled to qualified immunity in regards to the station design, or that the City was not “affirmatively negligent” and is thus protected by the notice provisions of New York Administrative Code § 7-201. Therefore, the Court does not believe that its invalidation of the [*499] waiver as to road conditions and hazards within the bike stations threatens the viability of the Citi Bike program.

D. Conclusion

For the foregoing reasons, the Release Agreement effectively releases Corwin’s common-law negligence claims against NYCBS, allowing only claims of gross negligence to proceed against it. The waiver does not apply to the City, however, because such a release of the City’s duty would be contrary to public policy; accordingly, Corwin may proceed with his common-law negligence claims against the City. The Court need not decide if the APD is a “Released Person” under the Agreement, as it grants summary judgment to APD on all claims in Part VIII of this opinion on other grounds.

III. Affirmative Defenses Based on Corwin’s Failure to Wear [**52] a Helmet

Defendants have set out various affirmative defenses–including comparative negligence, primary assumption of the risk, and failure to mitigate damages–premised on the uncontested fact that Corwin was not wearing a bicycle helmet at the time of the crash. Corwin moves for partial summary judgment on all of these defenses, arguing that there was no statutory obligation that he do so, that the City and NYCBS themselves represented that wearing a helmet was unnecessary, and that New York Vehicle and Traffic Law (“VTL”) § 1238(7) and case law in New York and other jurisdictions expressly prohibits such conduct from being considered for the purposes of liability or damages.

As a preliminary matter, Corwin argues that defendants have failed to produce sufficient evidence to raise a factual question as to whether there was an unreasonable risk of a head injury while riding a Citi Bike without a helmet. Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party . . . .” Chambers, 43 F.3d at 37. There are disputed questions of material fact in this case as to both (a) whether a reasonably prudent person in Corwin’s [**53] circumstances would have worn a helmet and (b) whether wearing such a helmet would have mitigated the damages Corwin suffered. See, e.g., ECF No. 344, Decl. of Elizabeth McCalley (arguing that Corwin would not have sustained many of his severe injuries had he worn a helmet).

There is no dispute that Corwin was not obligated to wear a helmet while riding a Citi Bike or any other bicycle; unlike the seatbelt requirements of N.Y. VTL § 1229-c, there is no statutory obligation for an adult bicyclist to wear a helmet while riding a bike on a public road. N.Y. VTL § 1238(5) does require children under the age of fourteen to do so, but imposes no affirmative obligations on individuals over that age. A subsection of the same statute also indicates that “the failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not in any way bar, preclude or foreclose an action for personal injury or wrongful death by or on behalf of such person, nor in any way diminish or reduce the damages recoverable in any such action.” VTL § 1238(7); see also Lamica v. Precore, 273 A.D.2d 647, 647-48, 709 N.Y.S.2d 694 (3d Dep’t 2000) (in accident involving helmetless child on bicycle, dismissing defendants’ counterclaim that parents were negligent [**54] for failing to ensure child wore helmet). Therefore, Corwin argues, if New York has seen fit to preclude expressly the consideration of helmet evidence for either liability or damages purposes even when wearing a helmet is mandated [*500] by law, surely the failure to wear a helmet by someone not obligated to do so by law should be similarly inadmissible.

The fact that New York has categorically barred the consideration of such evidence in a statute aimed at the protection of children does not, however, imply that the state has a general public policy against the admission of such evidence for all bicycle riders. Indeed, though Corwin argues that it would be “anomalous and irrational” to admit helmet evidence for an older rider under no legal obligation to wear a helmet, there is a clear and obvious rationale for the limited reach of the statute: a desire to prevent families from being burdened with costs stemming from accidents occurring on account of their young children’s inability to perceive risks, and a determination that parents should not be found negligent for failing to ensure that their children wear helmets. No court has interpreted VTL § 1238(7) to stand for a general public policy that the [**55] failure to wear a helmet is inadmissible for purposes of measuring comparative negligence or mitigation of damages, and the Court declines to do so today.

While the New York Court of Appeals has not spoken authoritatively on the specific question of whether the non-use of a bicycle helmet is admissible under such circumstances, the framework that it adopted regarding the non-use of seat belts in automobiles is instructive. At a time when no law mandated that occupants of a passenger car wore seat belts, the court explicitly rejected the failure to wear a seat belt as a basis for contributory negligence8 or primary assumption of the risk, but concluded that:

nonuse of an available seat belt . . . is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. However . . . the plaintiff’s nonuse of an available seat belt should be strictly limited to the jury’s determination of the plaintiff’s damages and should not be considered by the triers of fact in resolving the issue of liability. [**56]

Spier v. Barker, 35 N.Y.2d 444, 449-50, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974).

8 Though the Spier decision was rendered before New York’s adoption of the comparative fault system and therefore discussed only if a plaintiff would be wholly barred from recovery under the then-existing doctrine of contributory negligence, New York courts have consistently considered seat belt evidence exclusively for purposes of mitigation of damages, and not for the apportionment of comparative fault. See, e.g., Stein v. Penatello, 185 A.D.2d 976, 976-77, 587 N.Y.S.2d 37 (2d Dep’t 1992).

Therefore, in cases involving the failure to wear a seat belt, New York law imposes a pre-accident obligation to mitigate damages, and the burden of proving that the injured party failed to do so rests upon the defendant. Davis v. Davis, 49 A.D.2d 1024, 1024, 374 N.Y.S.2d 482 (4th Dep’t 1975). Lower New York courts have applied the same principles to other types of protective gear as well. See, e.g., Penzell v. State, 120 Misc. 2d 600, 466 N.Y.S.2d 562, 567 (Ct. Cl. 1983) (motorcycle helmets); Giannetti v. Darling Del. Carting Co., 175 Misc. 2d 1, 666 N.Y.S.2d 372, 374-76 (Sup. Ct. Suffolk Cnty. 1997) (safety gloves in fast food restaurant). And, indeed, in the state court proceedings parallel to this case, the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how [*501] damages, if any, should be assessed.” Corwin v. City of New York, 141 A.D.3d 484, 490, 36 N.Y.S.3d 118 (1st Dep’t 2016) (citation omitted).9

9 State courts in other jurisdictions have also drawn analogies between seat belt and helmet use. See, e.g., Stehlik v. Rhoads, 2002 WI 73, 253 Wis. 2d 477, 645 N.W.2d 889 (Wis. 2002) (same principles govern seat belt and helmet defenses for ATV rider); Meyer v. City of Des Moines, 475 N.W.2d 181, 186 (Iowa 1991) (same for moped rider); Warfel v. Cheney, 157 Ariz. 424, 758 P.2d 1326 (Ariz. App. 1988) (same for motorcyclist).

To be sure, some courts across the country have reached contrary conclusions.10 See, e.g., Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 647-48 (D.N.J. 1997) (noting that nothing in federal or state law alerts adult cyclists that their rights may be prejudiced by failure to wear a helmet, finding fewer safety concerns with helmetless biking and rejecting analogy to seat belt laws); Walden v. State, 250 Mont. 132, 818 P.2d 1190, 1196-97 (Mont. 1991) (holding same in state where evidence [**57] of seat belt use is inadmissible for mitigation of damages purposes). The decision in Corwin, however, and the logic of Spier and the New York cases extending it beyond the seat belt domain, compel denial of Corwin’s motion for summary judgment as it pertains to the affirmative defenses relating to mitigation of damages.

10 Corwin relies on Phelan v. State of New York, 11 Misc. 3d 151, 804 N.Y.S.2d 886 (N.Y. Ct. Cl. 2005), where the New York Court of Claims declined to consider a bicyclist’s non-use of a helmet in mitigation of damages. The case, however, is distinguishable as “no persuasive testimony, medical or otherwise, was proffered to establish that [plaintiff’s] injuries would have been either avoided or reduced had she worn a helmet.” Id. at 167. Therefore, the defendant failed to make even a prima facie case that damages should be mitigated by the decedent’s failure to wear a helmet. To the extent that Phelan also based the decision on the fact the “[d]ecedent was not required to wear a helmet [by law],” this is inconsistent with the Appellate Division’s decision in Corwin, 141 A.D.3d 484, 36 N.Y.S.3d 118, and the logic of Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916.

Nevertheless, even as Spier and its progeny indicate that Corwin’s non-use of a helmet will be admissible for the purposes of calculating damages, the cases also hold that such evidence is inadmissible on questions of liability. Therefore, defendants shall not be permitted to argue that Corwin was comparatively negligent for failing to wear a helmet.11 For the same reason and for the reasons expressed in Part VI of this Opinion, defendants will also not be permitted to argue that Corwin’s claims are barred by the doctrine of primary assumption of risk. See also Cotty, 64 A.D.3d at 256 (2d Dep’t 2009) (“[R]iding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine.”).

11 Of course, defendants may still argue at trial that Corwin was comparatively negligent for other reasons, including, inter alia, the speed, manner, and location of where he was riding his bicycle.

Accordingly, Corwin’s motion for summary judgment is DENIED as to the City’s Seventh and Ninth affirmative defenses (ECF. No. 200), NYCBS’s Sixth affirmative [**58] defense (ECF No. 199), and Metro Express’s Sixth affirmative defense (ECF No. 213) concerning the relevance of his non-use of a helmet to mitigation of damages, and GRANTED as the City’s Second and Eighth affirmative defenses, NYCBS’s First and Seventh affirmative defenses and Metro Express’s Second and Seventh affirmative defenses, inasmuch as those defenses assert the relevance of his non-use of a helmet to comparative negligence and assumption of the risk. Sealcoat [*502] did not explicitly reference Corwin’s failure to use a helmet as an affirmative defense, (ECF No. 211) and in Part VIII, the Court grants summary judgment to APD and APDNY, thus rendering the question of summary judgment on their First affirmative defense moot.

IV. Qualified Immunity

A. City’s Qualified Immunity for Bike Station Design and Wheel Stop Placement

The City of New York moves for summary judgment on the grounds that its involvement in the design and planning of the Citi Bike program is a uniquely governmental function for which it is entitled to qualified immunity as a matter of law. See Valdez v. City of New York, 18 N.Y.3d 69, 76, 960 N.E.2d 356, 936 N.Y.S.2d 587 (2011) (“Even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental [**59] function can avoid liability if it . . . proves that the alleged negligent act or omission involved the exercise of discretionary authority.”).

“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.” Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 995 N.E.2d 131, 972 N.Y.S.2d 169 (2013). A municipality engages in governmental functions when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers,” and in proprietary functions when “its activities essentially substitute for or supplement traditionally private enterprises.” Id. (citations omitted). If a municipality acts in a governmental capacity, the plaintiff must prove that he was owed a special duty, and that the exercise of governmental authority was not discretionary. Turturro v. City of New York, 28 N.Y.3d 469, 478-79, 45 N.Y.S.3d 874, 68 N.E.3d 693 (2016).

Traffic planning decisions, including decisions about the design of roads and other facilities, are proprietary functions, arising from a municipality’s “proprietary duty to keep its roads and highways in a reasonably safe condition.” Wittorf, 23 N.Y.3d at 480. This duty, while “nondelegable . . . is measured by the courts with consideration given [**60] to the proper limits on intrusion into the municipality’s planning and decision-making functions.” Friedman, 67 N.Y.2d at 283 (internal quotation marks and citations omitted). As such, “in the specific proprietary field of roadway safety, a municipality is afforded ‘a qualified immunity from liability arising out of a highway planning decision'” under certain circumstances. Turturro, 28 N.Y.3d at 479-80 (quoting Friedman, 67 N.Y.2d at 283)).

Such immunity arises only when the defendant can “demonstrate that a public planning body considered and passed upon the same question of risk as would go to a jury in the case at issue.” Jackson v. N.Y. City Transit Auth., 30 A.D.3d 289, 290-91, 818 N.Y.S.2d 32 (1st Dep’t 2006) (finding general evaluation of buses referencing passengers’ ability to grab onto overhead racks insufficient to grant qualified immunity on claim that transit authority should have installed grab bars and handholds); Leon v. N.Y. City Transit Auth., 96 A.D.3d 554, 554-55, 947 N.Y.S.2d 33 (1st Dep’t 2012) (denying qualified immunity for passenger injured by falling in gap between train car and platform when City had only studied the risk that train would scrape platform); see [*503] also Turturro, 28 N.Y.3d at 483 (no qualified immunity for City’s failure to study speeding traffic on avenue); Poveromo v. Town of Cortlandt, 127 A.D.3d 835, 837, 6 N.Y.S.3d 617 (2d Dep’t 2015) (no qualified immunity for municipality’s failure to install certain traffic devices at an intersection absent a study); Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637 (2d Dep’t 2011) (no qualified immunity for design of traffic [**61] intersection in absence of any pedestrian traffic studies); cf. Levi v. Kratovac, 35 A.D.3d 548, 549, 827 N.Y.S.2d 196 (2d Dep’t 2006) (qualified immunity granted for design of traffic intersection pursuant to a pedestrian safety study and reasonable traffic plan).

In light of these principles, the key question is whether the City’s planning of the Citi Bike program “passed upon the same question of risk” that this case presents–namely, that the placement of unpainted concrete wheel stops within Citi Bike stations could pose a tripping danger to cyclists. The City describes a collaborative process between it and APD based on its experiences with “bike corrals” that employed similar features, including wheel stops. ECF No. 293, City St. ¶¶ 40-42, 50. The City indicates that it viewed wheel stops as “the most important safety feature that was also installed in 2011.” Id. ¶ 46. Accordingly, the result of its collaboration with APD was a set of guidelines including the use of “non-permanent bollards, wheel stops, and paint markings.” Id. ¶ 55; ECF No. 289-19, 04/23/12 Station Siting Guidelines at 11. The City notes that APD and APDNY considered a wheel stop to be a necessary feature to protect the bike station from vehicles encroaching on the station and [**62] damaging the equipment or injuring individuals who may be within the station. City St. ¶ 58; ECF No. 289-3, Adrian Witte 08/14/15 Depo. at 20-21; ECF No. 289-5, Jeff Olson 09/29/15 Depo. at 410-11. The City did not, however, approve of the use of wheel stops that extend outside of the parking lane and into the travel lane. City St. ¶ 66; ECF No. 291, Sameer Barkho Decl. ¶ 10. The City determined that a yellow and black object marker, which had been included in the original design of some bike corrals, was “optional” because the on-street bike parking station sat in a parking lane and not a travel lane, and “pavement markings were more than sufficient to signal to an approaching motorist or bicyclist the presence of the on-street bike parking station and the presence of the wheel stop in the parking lane.” Id. ¶ 11. On the contrary, wheel stops would be situated within a white painted rectangular box with “white paint markings forming diagonal lines within the rectangular box.” Id. at ¶ 12.

The record plainly indicates that the decision to install concrete wheel stops in Citi Bike stations was the product of careful consideration and deliberation between the City and APD’s design and [**63] engineering experts. This mere fact, however, does not suffice for the City to be entitled to qualified immunity as a matter of law. Corwin does not merely seek to have the fact finder “examine the criteria that were considered by the State’s professional staff, emphasize factors allegedly overlooked, and, with the benefit of hindsight, rule that the studies were inadequate as a matter of law.” Friedman, 67 N.Y.2d at 285-86. Rather, he argues that though the City considered the need and efficacy of wheel stop placement to prevent cars from encroaching into the stations and harming individuals or property, it conducted no studies whatsoever as to whether such wheel stops could constitute tripping hazards for cyclists passing through such stations.

[*504] Though it is a close question, because the City has obviously given the coloring, placement, and demarcation of wheel stops some thought, the Court finds that there is a genuine dispute of material fact as to whether the City studied or “passed upon the same question of risk” presented in this case. While there is extensive testimony in the record that the City believed that wheel stops were of great importance in protecting stations from automobiles, the City has presented [**64] no specific study that suggests that it considered the effect of wheel stop placement or design on the safety of pedestrians or cyclists passing through the station, or whether the City considered that the wheel stops might be in the foreseeable paths of cyclists who, by custom or necessity, pass through the Citi Bike station footprints. In particular, it is not clear on what basis the City decided that object markers were to be made “optional,” or if the City considered the adequacy of shorter wheel stops that would extend no further into the parking lane than the bikes themselves. Therefore, as a reasonable fact-finder could find that the City did not study or pass on the “same question of risk,” the City is not entitled to qualified immunity as a matter of law on the specific question of wheel stop placement. At trial, the jury will be asked special interrogatories to resolve these disputed facts.

B. City’s Qualified Immunity for Failure to Provide Bicycle Helmets to Citi Bike Users

The City also moves for summary judgment on the basis of qualified immunity on Corwin’s claims that “the intentional failure and refusal of the Defendants to design Citi Bike to include a convenient system [**65] of helmet rentals–as in place in Melbourne, Vancouver and Seattle–or otherwise provide helmets at all Citi Bike sites, was negligent . . . .” ECF No. 192, Second Am. Compl. ¶ 352.

The record plainly demonstrates that the City’s decision not to mandate or provide helmets to Citi Bike users was the fruit of a well-reasoned policy based on extensive study of the “same question of risk as would go to a jury in the case at issue.” Jackson, 30 A.D.3d at 290. As early as 2009, the City’s Feasibility Study noted that “increasing the number of bicyclists is one of the most reliable ways to increase bicyclist safety,” and cast doubt on the feasibility of helmet distribution. City St. ¶ 4; ECF No. 290-1, Bike Share Feasibility Study. The director of the City’s Bike Share Unit stated that the City found that “mandatory helmet laws decreased bicycle ridership in general and decreased participation in bike share programs in particular. [The City] considered statistics showing that mandatory helmets laws actually decreased the safety of bicycling . . . [and] bicycle riders wearing helmets tend to ride more recklessly than riders who do not.” ECF No. 290, John Frost Decl. ¶ 5. The City specifically noted that in Melbourne, [**66] Australia, mandatory helmet laws resulted in a lowered rate of bicycle usage. City St. ¶ 13; ECF No. 289-2, Kate Fillin-Yeh 08/20/15 Depo. at 46-48. The City also specifically considered installing automatic helmet rental machines and rejected the proposal on hygiene and structural integrity grounds in public comments justifying the policy choice. ECF No. 290, John Frost Decl. ¶ 6; ECF No. 289-1, Stephanie Levinsky-Shaw 08/12/15 Depo. at 222. Nevertheless, the City encouraged bicycle helmet use by distributing discount voucher coupons for the purchase of helmets to annual members and expanding helmet fitting and giveaway programs. ECF No. 290, Frost Decl. ¶ 7; ECF No. 289-2, Fillin-Yeh Depo. at 56, 60.

[*505] Contrary to Corwin’s contentions, the fact that Defendants may raise the issue of his non-use of a helmet to prove a failure to mitigate damages does not affect the City’s qualified immunity on this issue. Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.” [**67] Corwin, 141 A.D.3d at 495 (Andrias, J., dissenting). He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. See Weiss v. Fote, 7 N.Y.2d 579, 588, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960) (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.

V. New York City Administrative Code § 7-201

New York City Administrative Code § 7-201(c)(2) provides that:

No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street . . . being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation . . . or where there was previous injury to person or property as a result of the . . . condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the . . . condition, and there was a failure or neglect [**68] within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.

Popularly known as the “Pothole Law,” the purpose of § 7-201(c)(2) is to prevent municipal liability for “nonfeasance” and to limit it to cases where the municipality had actual notice and opportunity to correct the hazardous condition. Katz v. City of New York, 87 N.Y.2d 241, 243, 661 N.E.2d 1374, 638 N.Y.S.2d 593 (1995). It is uncontested that the City did not have written notice of the installation of the specific wheel stop at the Madison Avenue end of the Citi Bike station where the crash occurred until after the accident, and that the drawing accompanying the permit does not show a wheel stop at that location. City St. ¶¶ 107-12. City records do not demonstrate any written complaints or claims of injury regarding a wheel stop at that location. Id. at ¶¶ 111-13.

There are, however, two exceptions to § 7-201(c)(2)–“that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” Yarborough v. City of New York, 10 N.Y.3d 726, 728, 882 N.E.2d 873, 853 N.Y.S.2d 261 (2008) (citation omitted).

Corwin does not merely allege that the City failed to remediate a dangerous condition created by a third party; indeed, his entire theory of liability [**69] is predicated on the premise that the City was affirmatively negligent in the design and placement of Citi Bike stations and wheel stops in the system as a whole. Additionally, he argues that the City was on notice of contractors’ failures to install stations as per plan specifications and yet failed to monitor them effectively, and ultimately approved an [*506] identical policy of putting wheel stops on both ends of Citi Bike stations. ECF No. 335-33, NYC Comptroller Audit; ECF No. 336-25, Station Plan w/ 2 Wheel Stops. The City, for its part, notes that neither it nor NYCBS, with whom it had a contractual relationship, actually installed the wheel stop at issue; rather, it alleges that it was installed by Sealcoat, a contractor of MetroExpress, who itself was NYCBS’s contractor. City St. ¶¶ 83-84.

The Court finds that there is a genuine dispute of material fact as to whether the City was affirmatively negligent so as to lose the written notice protections of § 7-201(c)(2). While Corwin cannot produce “smoking gun” evidence that the City affirmatively directed NYCBS or its agents to install the specific wheel stop in question, Corwin does provide evidence indicating that similar wheel stops were installed [**70] elsewhere in the City and that modifications to station plan installations were often done informally. See ECF No. 368-6 (10/30/2013 email from Dani Simons, NYCBS, to Stephanie Levitsky, DOT, stating “I do not know why [the wheel stop is] not in the drawings. I do know that [NYCBS directors] Hasib [Ikramullah] and Michael [Pellegrino] have both told me that we’ve started putting them on the cross-walk side of stations in high traffic areas . . . .”); ECF No. 336-19 (07/01/2013 email from Stephanie Levinsky to Jon Orcutt referencing “numerous on the fly modification[s]”); ECF No. 368-8 (May 15, 2013 email from DOT to NYCBS referencing “supplemental street treatments” not on the initial plan diagrams).

This evidence could lead a reasonable finder of fact to conclude that either the specific wheel stop in question, or all wheel stops that enter into the foreseeable pathway of a cyclist, were installed pursuant to affirmative acts of negligence by the City. The fact that the City had no direct contractual relationship or knowledge of the involvement of Metro Express or Sealcoat is not dispositive. Just as the City cannot delegate its duty to maintain the roads to a contractor, it cannot do so to a subcontractor [**71] of that contractor.

Accordingly, the question of whether the affirmative negligence exception to the written notice protections of § 7-201(c)(2) applies is a disputed question of fact to be resolved at trial, and the City is not entitled to summary judgment because it was not provided notice of the allegedly defective condition.12

12 Because the Court finds that the “affirmative negligence” exception may apply and because neither party has adequately briefed the “special use resulting in a special benefit” exception to § 7-201(c)(2), the Court declines to address the “special use” exception in this opinion.

VI. Primary Assumption of the Risk

The City, NYCBS, and APD also move for summary judgment on the grounds that the doctrine of primary assumption of the risk bars Corwin’s negligence claims. In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.” Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986). In this case, the Release Agreement signed by Corwin contained explicit provisions on assumption of the risk, which state, inter alia, that “Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or [*507] avoided. Member agrees that such risks, dangers, [**72] and hazards are Member’s sole responsibility.” ECF No. 316-1, Release Agreement. Whether or not the broad assumption of the risk language is applicable depends on what courts consider to be the risks inherent in bicycling, recreational or otherwise, on a paved road in an urban environment.

The New York Court of Appeals has cautioned that the doctrine of assumption of risk is justifiable exclusively for its utility in “‘facilitat[ing] free and vigorous participation in athletic activities'” and warned that the doctrine must be “closely circumscribed” and not “applied outside this limited context” lest it unduly displace the state’s comparative negligence regime. Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127 (2010) (citing Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989)).13 Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred.” Cotty, 64 A.D.3d at 255. Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational [**73] or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.” Id.; see also Moore v. City of New York, 29 A.D.3d 751, 752, 816 N.Y.S.2d 131 (2d Dep’t 2006) (plaintiff did not assume risk of recreational cycling on paved park road); Vestal v. Cty. of Suffolk, 7 A.D.3d 613, 614-15, 776 N.Y.S.2d 491 (2d Dep’t 2004) (“[T]he injured plaintiff cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because she participated in the activity of bicycling,” even where County argued that the pathway was “abandoned”).

13 In its reply memorandum of law, NYCBS appears to characterize Trupia as permitting an open-ended “social benefit” analysis to determine whether the assumption of risk doctrine applies and discusses the numerous beneficial aspects of the Citi Bike program as a public transit system. Trupia, however, was limited to discussing the social benefit to certain risky athletic activities and explicitly warns against applying the doctrine in any other context. 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127.

To be sure, courts have held that the doctrine of assumption of the risk applied in other contexts involving recreational cyclists. See, e.g., DeJesus v. City of New York, 29 A.D.3d 401, 402, 815 N.Y.S.2d 502 (1st Dep’t 2006) (plaintiff assumed risk for riding on pedestrian-only pathway in housing development); Chrem v. City of New York, 293 A.D.2d 301, 302, 741 N.Y.S.2d 201 (1st Dep’t 2002) (plaintiff assumed risk of steep drop-off in the back of a dirt mound not designated for cycling); Furgang v. Club Med, Inc., 299 A.D.2d 162, 162, 753 N.Y.S.2d 359 (1st Dep’t 2002) (“[T]he risk of encountering ruts and bumps while riding a bike over a rough roadway without a helmet is so obvious [that] as a matter of law, plaintiff assumed any risk inherent in the activity . . . .”); Goldberg v. Town of Hempstead, 289 A.D.2d 198, 198, 733 N.Y.S.2d 691 (2d Dep’t 2001) (“Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces, [**74] and the defective condition in this case was open and obvious, the infant plaintiff assumed [*508] the risk associated with riding her bicycle on the ballfield.”) (citations omitted); Calise v. City of New York, 239 A.D.2d 378, 379, 657 N.Y.S.2d 430 (2d Dep’t 1997) (plaintiff assumed the risk of hitting an exposed tree root on unpaved path in public park). These cases, however, are readily distinguishable because they all involved individuals riding a bicycle on an unpaved path or other area plainly not designated for cycling. While defendants contend that the Citi Bike station was such an “undesignated” area, the station was obviously integrated into the public roadway, and Corwin has at the very least raised a genuine dispute of material fact as to whether the design of this station compelled or encouraged him to ride through it to avoid riding dangerously close to traffic. Therefore, his brief passage through the parking lane and bike station cannot be analogized to a considered decision to engage in recreational mountain biking or to ride down an undesignated pedestrian walkway.

Accordingly, the doctrine of primary assumption of the risk is unavailable, and defendants are not entitled to summary judgment on this theory.

VII. “Open and Obvious”

A defendant has “no duty [**75] to protect or warn against an open and obvious condition which is not inherently dangerous.” Stern v. River Manor Care Ctr., Inc., 106 A.D.3d 990, 990, 965 N.Y.S.2d 377 (2d Dep’t 2013). Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Russo v. Home Goods, Inc., 119 A.D.3d 924, 925-26, 990 N.Y.S.2d 95 (2d Dep’t 2014). Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion . . . .” Tagle v. Jakob, 97 N.Y.2d 165, 169, 763 N.E.2d 107, 737 N.Y.S.2d 331 (2001). Defendants contend that Corwin’s claims fail as a matter of law because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.”

Defendants’ claims are buttressed by cases holding that wheel stops located in parking lots or similar environments were sufficiently “open and obvious” so as to bar claims by injured pedestrians. See, e.g., May v. Ruby Tuesday, Inc., No. 13-CV-170 (FJS)(ATB), 2014 U.S. Dist. LEXIS 140090, 2014 WL 4966544, at *5-6 (N.D.N.Y. Oct. 2, 2014) (parking lot wheel stop open and obvious especially given plaintiff’s admission that she had previously seen it); Abraido v. 2001 Marcus Ave, LLC, 126 A.D.3d 571, 571-72, 4 N.Y.S.3d 43 (1st Dep’t 2015) (wheel stop in well-lit parking lot open and obvious); Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 (2d Dep’t 2013) (parking lot wheel stop open and obvious when plaintiff admitted she was attempting to step over it); Wachspress v. Cent. Parking Sys. of New York, Inc., 111 A.D.3d 499, 499-500, 974 N.Y.S.2d 439 (1st Dep’t 2013) (parking [**76] lot wheel stop open and obvious); Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 593-94, 785 N.Y.S.2d 108 (2d Dep’t 2004) (same).

Whether or not a potential hazard is readily visible to the naked eye is evidently an important consideration in determining whether it is open and obvious, but it does not definitively resolve the question because “[t]he nature or location of some hazards, while they are technically visible, make them likely to be overlooked.” Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 (1st Dep’t 2004). On at least two occasions, New York courts, considering the broader context of plaintiffs’ encounter with wheel stops, declined [*509] to find that they were “open and obvious.” In Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 797-98, 22 N.Y.S.3d 106 (2d Dep’t 2015), the court found that a concrete wheel stop that began in a designated parking space but partially extended into and obstructed a pedestrian walkway was not “open and obvious” as a matter of law. Similarly, in O’Leary v. Saugerties Cent. Sch. Dist., 277 A.D.2d 662, 662, 716 N.Y.S.2d 424 (3d Dep’t 2000), a plaintiff who tripped over a concrete parking lot wheel stop raised a triable issue of fact by arguing that it was undetectable and camouflaged by cars parked bumper-to-bumper.

Were the Court to view the wheel stop, cross-hatching, and delineators in isolation, it would be hard-pressed to distinguish them from the conspicuous parking lot wheel stops that New York courts have found to be “open and obvious” as a matter of law. Notwithstanding [**77] Corwin’s argument that the wheel stop was “camouflaged” because it was not painted in a bright color that would contrast it with its surroundings, photographic evidence submitted by both Corwin and defendants suggests to the Court that it would have been readily visible to an observant pedestrian. Nevertheless, the types of obstacles that a pedestrian might expect to encounter in a parking lot are substantially different from those that a cyclist would expect in an on-street bike station. Therefore, the Court finds that Corwin has raised a genuine issue of material fact as to whether the wheel stop was open and obvious to an attentive person in his position–that is, a cyclist traveling within a station that arguably invited use as a bike lane.

The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” ECF No. 335, Green Decl. ¶ 56. An [**78] hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Id. ¶¶ 35, 57. Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. Id. ¶ 46. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.” Id. ¶¶ 48-49.

In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott, 550 U.S. at 378. Drawing all inferences in his favor, Corwin has distinguished the cases that feature garden-variety wheel stops in parking lots. Similar to the scenario in Rivera, 134 A.D.3d at 797, where the court did not find that a wheel stop was open and obvious as a matter of law when it partially obstructed a pedestrian walkway, there is a genuine dispute of material [**79] fact as to whether the wheel stop hazardously obstructed a path that was foreseeably and actually utilized by cyclists.

Accordingly, defendants are not entitled to summary judgment on the grounds that the wheel stop that caused Corwin’s accident was “open and obvious.”

[*510] VIII. Claims against Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC

Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC (collectively, “APD”), the architects and designers for the Citi Bike project who collaborated with the City to generate site plans for stations, move for summary judgment on Corwin’s claims of common law, gross, and professional negligence. APD notes that the key elements of the station that Corwin alleges caused his crash–primarily, the installation of the additional wheel stop at the east end of the station and the increased width of the station footprint–were installed in violation of its approved design. Corwin alleges that, even if APD did not recommend the installation of the specific wheel stop, their recommendation of unpainted concrete wheel stops throughout the Citi Bike system, and wheel stops’ placement within the [**80] foreseeable path of cyclists passing through stations were substantial factors in his accident. The Court need not resolve this dispute, however, because it finds that, regardless of the propriety of its recommendations to the City, APD did not owe a duty of care to Corwin under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002).

It is uncontested that, as an architecture firm, APD did not have any contractual obligations to install, inspect, or maintain Citi Bike stations and, therefore, could not be liable to Corwin under any theory dependent on its control of Citi Bike stations or wheel stops. See Gibbs v. Port Auth. of New York, 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 (1st Dep’t 2005) (“Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises . . . .”). It is similarly clear that APD had no direct contractual obligation to Corwin. Therefore, any duty to Corwin would necessarily flow out of APD’s contractual obligation to Alta Bicycle Share/NYCBS. “In the ordinary case, a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries.” Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 556 N.E.2d 1093, 557 N.Y.S.2d 286 (1990); see also H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 (1928) (Cardozo, J.) (noting that a contrary holding would imply that a contracting party would be forced into “the involuntary assumption [**81] of a series of new relations, inescapably hooked together”).

In Espinal, the New York Court of Appeals, synthesizing decades of case law, announced three exceptions to the general principle that contracting parties do not owe a duty of care to third persons. These exceptions are:

(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ (Moch, 247 N.Y. at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties (see Eaves Brooks, 76 N.Y.2d at 226) and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (see Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 589, 634 N.E.2d 189, 611 N.Y.S.2d 817 (1994)).

Espinal, 98 N.Y.2d at 140.

Corwin could not have relied on APD’s continuing performance under its contract with Alta Bicycle Share/NYCBS because [*511] APD had no such obligations except submitting site plans, and it had no effect on the duty of the other defendants to maintain the bike stations safely. Therefore, the only Espinal exception that arguably applies is that APD “launched a force or instrument of harm” with its allegedly negligent site plans and recommendations for wheel stop placements. This standard is met where “the promisor, while engaged affirmatively in [**82] discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk.” Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 111, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002); see also Guzman v. Wackenhut Corp., 394 F. App’x 801, 803 (2d Cir. 2010) (summary order).

On these facts, accepting the argument that providing allegedly negligent design advice and site plans is sufficient to “launch a force or instrument of harm” would lead to the very limitless expansion of tort liability that New York law seeks to prevent. Moch Co., 247 N.Y. at 165 (Cardozo, J.) (“An intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose.”). Indeed, Corwin’s argument is that APD’s negligence consists not of specific malfeasance relating to the design of the Citi Bike station where his accident occurred,14 but its general negligence in approving the type, appearance, and placement of wheel stops throughout the Citi Bike system. The logical conclusion of this argument is that by providing services to Alta Bicycle Share/NYCBS, APD would be subjecting itself to potential tort liability to literally millions of potential plaintiffs who could be involved in an accident involving wheel stops in any one of hundreds of Citi Bike stations–even as [**83] it had no responsibility for the maintenance or installation of the allegedly hazardous obstructions.15 This is not the law as summarized in Espinal.

14 Indeed, as APD argues, the Citi Bike station at issue in this case did not conform to its plan at all. See ECF No. 321-30, APD Expert Report. Corwin’s own expert would seem to agree. In a rebuttal report, James M. Green contended that “the original Engineering design [presented by APD] was proper in minimizing the clearance behind the parked bicycles and leaving out a wheel stop at the [relevant] intersection and was not followed during the construction of the bike station.” ECF No. 321-24, Green 01/06/16 Rebuttal Report at 9.

15 Corwin’s evidence that APD actually had some responsibility for the installation of Citi Bike stations, which appears to consist of a single May 22, 2013 email from APD engineer Adrian Witte referring the installation of station “bridging” (ECF No. 336-28), and deposition testimony references to the “collaborative” process between APD, NYCBS, and the City (ECF No. 335-6. Jeff Olson 08/26/15 Depo. at ¶¶ 401-02, 484, 530), is insufficient to raise a genuine dispute of material fact about APD’s lack of responsibility over Citi Bike stations.

Finally, Corwin argues that APD was an alter ego of Alta Bicycle Share/NYCBS because APD served as the parent company over Alta Bicycle Share before its sale in 2014. ECF No. 192, Second Am. Compl. ¶ 16. “It is well-settled that the party seeking to pierce the corporate veil has the burden of establishing that there is a basis to do so.” Maggio v. Becca Constr. Co., 229 A.D.2d 426, 427, 644 N.Y.S.2d 802 (2d Dep’t 1996) (citations omitted). Notwithstanding the close relationship between APD and Alta Bicycle Share/NYCBS, and their former association, Corwin has failed to establish that APD is anything but a legitimate and separate business entity engaging in planning and design. “Those seeking to pierce a corporate veil of course bear a heavy burden of showing that the corporation was dominated as to the transaction [*512] attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences. . . . An inference of abuse does not arise . . . where a corporation was formed for legal purposes or is engaged in legitimate business.” TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339-40, 703 N.E.2d 749, 680 N.Y.S.2d 891 (1998); see also Joseph Kali Corp. v. A. Goldner, Inc., 49 A.D.3d 397, 398-99, 859 N.Y.S.2d 1 (1st Dep’t 2008) (refusing to pierce corporate veil [**84] between two entities operated by same principal). On the record before it, the Court sees no conceivable equitable reason to disregard the corporate form in this case.

As the Court concludes that APD did not owe any duty to Corwin under Espinal, it need not consider APD’s alternate arguments regarding proximate causation and its defense that Corwin’s claim arose out of a deviation from its design. The Court GRANTS APD’s motion for summary judgment in its entirety.

IX. Claims against Metro Express Services, Inc. and Sealcoat USA, Inc.

Defendants Metro Express Services, Inc. and Sealcoat USA, Inc. (“Metro Express” and “Sealcoat,” respectively), third-party contractors who are alleged to have installed or sub-contracted the installation of the specific wheel stop that caused Corwin’s injuries, move for summary judgment, arguing that they did not owe Corwin a duty of care under Espinal, 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), and that the wheel stop is an open and obvious condition as a matter of law. Having already rejected the “open and obvious” argument in Part VII of this opinion, the Court considers whether Metro Express and Sealcoat had a duty to Corwin under one of the three Espinal exceptions discussed in Part VIII.

As was true [**85] for APD, there is no argument that Corwin “detrimentally relie[d] on the continued performance of the contracting party’s duties” or that Metro Express or Sealcoat “entirely displaced the other party’s duty to maintain the premises safely.” Id. at 140. Detrimental reliance becomes a consideration only when there is some form of continued contractual performance by the third-party contractor and is not relevant when the alleged negligent conduct concerns a one-time installation of station equipment (even if the contractor may have installed said equipment in many stations). And there is no evidence in the record that Metro Express or Sealcoat assumed any responsibilities, much less exclusive responsibilities, for the maintenance and safety of Citi Bike facilities.

Therefore, the only issue is whether there is a genuine dispute of material fact that Metro Express or Sealcoat “launch[ed] a force or instrument of harm.” Corwin contends that the wheel stop on the east side of the Citi Bike station was an “instrument of harm,” and a contractor negligently responsible for its installation could be found liable under Espinal. To be sure, “[a] builder or contractor is justified in relying upon the plans and specifications [**86] which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46, 145 N.E. 321 (1924). There are, however, genuine disputes of material fact as to whether the contractors installed the wheel stop in question and whether they did so pursuant to a plan provided them by NYCBS.

Citing ambiguities in emails received from NYCBS, Metro Express contends that a full installation of street treatments [*513] was never ordered for the Citi Bike station at issue, and in fact NYCBS only ordered Metro Express and Sealcoat to carry out repairs. ECF No. 366, Metro Express Reply Mem. at 3-4. Metro Express further notes that Sealcoat reported that there was nothing wrong with the station and never invoiced or received payment for any work. Id. at 5. Finally, it contends that Metro Express was never provided with a plan for the Station, and that NYCBS had been instructing Metro Express to install “supplemental street treatments” not depicted on the station plans, noting two specific instances in which they were ordered to do so in stations at Jay Street and Tech Place, and Charles Street and Greenwich [**87] Ave. Id. at 7-9.

While Metro Express and Sealcoat certainly raise issues of fact about their liability, there is sufficient information in the record to preclude a finding that they are entitled to judgment as a matter of law. For example, in addition to NYCBS’s allegations that Metro Express and Sealcoat were responsible for the installation, Ryan Landeck, Sealcoat Vice President, admitted in non-party deposition testimony in 2015 that Sealcoat had installed the wheel stop in question under Metro Express’s direction. ECF No. 289-10, Landeck 11/19/15 Depo. at 34, 45.16

16 Mr. Landeck later testified at a deposition that took place after Sealcoat was joined in the case that Sealcoat found that there was nothing to do be done at that location and Sealcoat did not invoice or receive payment for its alleged work at the station. ECF No. 368-3, Landeck 05/25/2016 Depo. at 51, 55. An October 23, 2013 email from Landeck to Michael Strasser, General Manager at Metro Express, further stated that “nothing was wrong at this station.” ECF No. 368-4.

Accordingly, the Court concludes that, unlike APD, there is a material dispute whether Metro Express and/or Sealcoat “launched a force or instrument of harm” if plaintiffs prove at trial that they negligently installed the wheel stop at the East 56th Street and Madison Avenue Citi Bike station in contravention of the site plan and the directions received from NYCBS. Unlike the case for APD, who provided general designs for hundreds of Citi Bike stations, there is no danger of an undue ballooning of tort liability because the contractors would be liable only for their own negligence and have an absolute defense if they can demonstrate [**88] that they were carrying out a pre-existing plan. Cf. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 430 (S.D.N.Y. 2014) (finding that Espinal and Moch stood for “the general public policy that courts will not impose a tort duty on a contracting party where doing so would expose the party to potentially unlimited and undefined liability” and finding a duty where there was “no risk of . . . boundless tort liability”).

Therefore, because the Court finds that a question of fact exists regarding whether Metro Express and/or Sealcoat “launched a force or instrument of harm,” Metro Express and Sealcoat’s motions for summary judgment are DENIED.

X. Gross Negligence Claims

Given that Corwin’s common-law negligence claims against NYCBS are barred by the enforceability of the Release Agreement as discussed in Part II of the opinion, NYCBS moves for summary judgment on the grounds that Corwin’s gross negligence claims fail as a matter of