Release signed previously for different event by same defendant used to defeat claim at new event in Georgia

Georgia Recreational Use Statute also stops claims for slip and fall by spectator at event.

Shields v. RDM, LLC, 355 Ga. App. 409, 844 S.E.2d 297 (Ga. App. 2020)

State: Georgia: Court of Appeals of Georgia

Plaintiff: Kimberly and James Shields

Defendant: RDM, LLC d/b/a Georgia All Stars

Plaintiff Claims: negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages

Defendant Defenses: Release and Recreational Use Statute

Holding: For the Defendant

Year: 2020

Summary

A mother watching her daughter perform in a gym tripped and fell breaking here leg stepping off mats. The gym raised the defenses of release, which the mother had signed at a previous event and the Georgia Recreational Use statute to successfully stop the claims of the mother.

Facts

…the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.

The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.

That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.

When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.

The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.

Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.

Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.

The mother and her husband sued the gym for negligence and loss of consortium.

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

The court started out by reviewing the requirements for a contract to be effective under Georgia law.

The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10

The court then looked at the four issues under Georgia’s law for a release to be valid.

Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.” Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.” And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.” Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”

In this case the court found the release was valid. The plaintiff then argued the release was only valid for the camp the defendant’s daughter had participated in where the release was signed. However, the court noted there was nothing in the release that limited its application to a specific event or a date certain.

In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.”

Always remember, there is no reason to limit the time frame of your release, doing so simply puts an end to your defenses when there is no t need to do so.

Find the release valid for a different time and location then the plaintiff argued the court then looked at whether the Georgia Recreational Use Act, OCGA § 51-3-20 et seq applied.

Recreational Use Statutes were created by legislatures to encourage land owners to open their land to other for recreational purposes. In general, the use must be free, or with no benefit to the land owner and for recreational purposes. Under Georgia’s law that meant:

(1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.” In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”

Here, watching a child’s gymnastic routine was considered recreational by the court. There was also no fee charged by the defendant for the children to use the facility or for the parent to watch the child perform.

The plaintiffs argued that since there were vendors at the event, the defendant received a benefit for the use of the facility. The court looked at Georgia Supreme Court decisions over the type of charge and determined:

“[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.” Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.” And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”

Although the defendant may or may not have made some type of money from the vendors. There was no payment by the defendant to the facility to be there. There was no requirement that a purchase had to be made from a vendor or the vendors received any benefit from the exhibition. In fact, the court summed up its analysis of the facts in the case as:

To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.

The court stated both defenses would have stopped the claims of the plaintiffs. In fact, the court used an analysis I have never seen to describe the situation.

If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders.

So Now What?

Too many times I see releases that have an ending date or a date when the release is no longer valid. Just the opposite needs to be made clear. That the release is valid for longer than one year. Many times, showing valid releases signed each year by the plaintiff is proof that the plaintiff knew and understood what they were signing, the risks and each release was another bar to the plaintiffs’ claims.

Do not limit the value of your release by putting a date on the release ending its effectiveness.

What do you think? Leave a comment.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

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Shields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)

Shields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)

355 Ga.App. 409
844 S.E.2d 297

SHIELDS et al.
v.
RDM, LLC .

A20A0465

Court of Appeals of Georgia.

June 5, 2020

Costyn Law, Joseph M. Costyn, Zachary B. Johnson, for appellants.

Freeman Mathis & Gary, Wayne S. Melnick, Jason A. Kamp, for appellee.

Dillard, Presiding Judge.

Kimberly and James Shields appeal from the trial court’s grant of summary judgment to RDM, LLC d/b/a Georgia All Stars on claims based on personal injuries Kimberly sustained during an event at Georgia All Stars’s facility. Specifically, the Shieldses argue that the trial court erred in granting summary judgment to Georgia All Stars and, in doing so, finding that their claims were barred by the terms of a medical release form signed by Kimberly and the Georgia Recreational Property Act (”RPA”).1 For the reasons set forth infra , we affirm.

Viewed de novo in the light most favorable to the Shieldses (i.e. , the nonmoving parties),2 the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.

The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.

That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.

When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.

The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.

Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.

The Shieldses later filed suit against Georgia All Stars on October 4, 2017, asserting claims of simple negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages. Georgia All Stars answered and filed a counterclaim against the Shieldses for breach of contract based on a medical release Kimberly signed some months prior to the incident in question. Georgia All Stars later moved for summary judgment on the Shieldses’ claims, contending that (1) Kimberly contractually released it, barring her claims of negligence, and (2) the claims were also barred by the Recreational Property Act.4 As a result, Georgia All Stars likewise argued that the Shieldses’ derivative claims should be dismissed. The trial court agreed that the Shieldses’ claims were barred by the medical release and the Recreational Property Act, granting summary judgment in favor of Georgia All Stars. This appeal follows.

1. For starters, the Shieldses argue that the trial court erred by concluding their claims were barred by a medical-release form Kimberly signed months prior to the night of the exhibition. We disagree.

Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.

The medical release provides, in relevant part:

In consideration of the services of Georgia All-Star Cheerleading, Inc., its owners, agents, officers, employees, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as ”GA”), I hereby agree to release, discharge, and hold harmless GA on behalf of myself, my children, my parents, my heirs, assigns, personal representative and estates as follows:

1. I understand and acknowledge that the activities that I or my child engage in while on the premises or under the auspices of GA pose known and unknown risks which could result in injury, paralysis, death, emotional distress, or damage to me, my child, to property, or to third parties. The following describes some, but not all of those risks:

Cheerleading and gymnastics, including performances of stunts and use of trampolines, entail certain risks that simply cannot be eliminated without jeopardizing the essential qualities of the activity. Without a certain degree of risk, cheerleading students would not improve their skills and the enjoyment of the sport would be diminished. Cheerleading and gymnastics expose participants to the usual risk of cuts and bruises, and other more serious risks as well. Participants often fall, sprain or break wrists and ankles, and can suffer more serious injuries. Traveling to and from shows, meets and exhibitions, raises the possibilities of any manner of transportation accidents. In any event, if you or your child is injured, medical assistance may be required which you must pay for yourself.

2. I expressly agree and promise to accept and assume all of the risks, known and unknown, connected with GA related activities, including, but not limited to performance of stunts and the use of trampolines. …

3. I hereby voluntarily release, forever discharge, and agree to hold harmless and indemnify GA from any and all liability, claims, demands, actions or rights of action, which are related to, arise out of, or are in any way connected with my child’s participation in GA-related activities.

In considering the trial court’s grant of summary judgment in favor of Georgia All Stars, we note that summary adjudication is only proper when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”6 And we review a grant or denial of summary judgment de novo , viewing all evidence in the light most favorable to the nonmoving party.7 Furthermore, the party opposing summary judgment is “not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.”8

Here, the trial court’s grant of summary judgment in favor of Georgia All Stars was based, in part, on the medical release signed by Kimberly. The construction of this contract is, of course, “a question of law for the court”9 that involves three steps:

The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10

Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.”11 Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.”12 And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”13 Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”14

In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.” Accordingly, the trial court properly granted summary judgment to Georgia All Stars on the ground that the medical-release form signed by Kimberly barred the claim for negligence related to her fall inside the gym during her daughter’s participation in an exhibition.15 Likewise, the trial court also properly granted summary judgment on the derivative claims for loss of consortium and damages.16

2. If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders. Indeed, the trial court correctly determined that the Shieldses’ claims are also foreclosed by the RPA,17 whose codified purpose is “to encourage both public and private landowners to make their property available to the public for recreational purposes by limiting the owners’ liability.”18

To that end, the RPA provides, inter alia , that

[e]xcept as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby … [a]ssume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.19

The RPA defines “charge” to mean “the admission price or fee asked in return for invitation or permission to enter or go upon the land.”20 So, in order to determine whether immunity is available to a property owner under the RPA, a court must make a determination “of the true scope and nature of the landowner’s invitation to use its property.”21 And in making this determination, the analysis is “properly informed” by “two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.”22 In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”23

Here, the Shieldses do not dispute that the activity in question—attending a free exhibition of cheerleading participants’ routines—was “recreational” within the meaning of the RPA. Instead, they maintain that “a material question of fact exists [as] to the purpose behind [Georgia All Stars’s] allowance of [their] daughter’s use of its facility, which relates directly to whether the operation of [the] gym constitutes a commercial or recreational venture.” This argument is a nonstarter.

There is no evidence or suggestion that Georgia All Stars charged an admission price or fee to attend the exhibition in question. To the contrary, the evidence shows that Georgia All Stars did not charge the members of Special Twist anything to use the facilities for practice at any time.24 And the presence of vendors at the exhibition does not change our conclusion. Indeed, as our Supreme Court recently explained in Mercer University v. Stofer ,25 “[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.”26 Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.”27 And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”28 There is no evidence that any attendees were required to make purchases from the vendors, that the exhibition was held for the benefit of the vendors, or that Georgia All Stars in any way profited from vendor sales.29 To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.

For all these reasons, we affirm the trial court’s grant of summary judgment to Georgia All Stars.

Judgment affirmed.

Rickman and Brown, JJ., concur.

——–

Notes:

1
See OCGA § 51-3-20 et seq.

2
See, e.g. , Gayle v. Frank Callen Boys and Girls Club, Inc. , 322 Ga. App. 412, 412, 745 S.E.2d 695 (2013) (“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

3 Georgia All Stars rents the gymnasium space and is an “owner” within the meaning of the Recreational Property Act. See OCGA § 51-3-21 (3) (defining “Owner” as the “possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises”).

4
See OCGA § 51-3-20 et seq.

5 Although the deposition transcripts in the appellate record indicate that various exhibits were identified and used during the depositions, including the relevant medical-release form, no exhibits were included with these depositions. Nevertheless, Kimberly read the relevant language contained in the medical-release form into the record during her deposition testimony, and Georgia All Stars included a scanned photograph of what it purports to be the medical-release form with the same language in one of its pleadings below. And because it is undisputed that the form exists and was signed by Kimberly, we will consider the language as reflected by what is in the record before us.

6
Sadlowski v. Beacon Mgmt. Servs., Inc. , 348 Ga. App. 585, 587-88, 824 S.E.2d 42 (2019) (punctuation omitted); accord
Navy Fed. Credit Union v. McCrea , 337 Ga. App. 103, 105, 786 S.E.2d 707 (2016).

7
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42 ; McCrea , 337 Ga. App. at 105, 786 S.E.2d 707.

8
Montgomery Cty. v. Hamilton , 337 Ga. App. 500, 502-03, 788 S.E.2d 89 (2016) (punctuation omitted); accord
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42.

9
Bd. of Cm’rs of Crisp Cty. v. City Cm’rs of the City of Cordele , 315 Ga. App. 696, 699, 727 S.E.2d 524 (2012) ; accord
Shelnutt v. Mayor of Savannah , 349 Ga. App. 499, 505 (3), 826 S.E.2d 379 (2019).

10
Bd. of Cm’rs of Crisp Cty. , 315 Ga. App. at 699, 727 S.E.2d 524 (punctuation and footnotes omitted); accord
Y.C. Dev. Inc. v. Norton , 344 Ga. App. 69, 73 (1), 806 S.E.2d 662 (2017).

11
Stanley v. Gov’t Emps. Ins. Co. , 344 Ga. App. 342, 344 (1), 810 S.E.2d 179 (2018) (punctuation omitted); see also
Yash Sols., LLC v. New York Glob. Consultants Corp. , 352 Ga. App. 127, 140 (2) (b), 834 S.E.2d 126 (2019) (same).

12
2010-1 SFG Venture LLC v. Lee Bank & Trust Co. , 332 Ga. App. 894, 897 (1) (a), 775 S.E.2d 243 (2015) (punctuation omitted); accord
Neighborhood Assistance Corp. v. Dixon , 265 Ga. App. 255, 256 (1), 593 S.E.2d 717 (2004) ; My Fair Lady of Ga. v. Harris , 185 Ga. App. 459, 460, 364 S.E.2d 580 (1987).

13
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.

14
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.

15
See
Lovelace v. Figure Salon, Inc. , 179 Ga. App. 51, 53 (1), 345 S.E.2d 139 (1986) (holding that trial court properly granted summary judgment on plaintiff’s claims for personal injury due to alleged negligence when plaintiff signed a release in which she assumed the risk of injury and the defendant disclaimed any liability, and in which the plaintiff agreed not to file suit against the defendant for any injuries she might incur). Cf.
Harris , 185 Ga. App. at 461, 364 S.E.2d 580 (“Under this factual predicate, where a cause of action is based on the alleged negligence of the club, and there being a valid contractual waiver and release for any action arising out of [the plaintiff’s] use of the facilities, which sounded in negligence, the trial court erred in denying [the defendant’s] motion for summary judgment.”).

16
See
Lovelace , 179 Ga. App. at 53 (3), 345 S.E.2d 139 (“The right of the husband to recover for loss of consortium being dependent upon the right of the wife to recover, the court did not err in granting summary judgment to defendant as to the husband’s cause of action.”).

17
See OCGA § 51-3-20 et seq.

18
S. Gwinnett Athletic Ass’n Inc. v. Nash , 220 Ga. App. 116, 117 (1), 469 S.E.2d 276 (1996) ; accord
Gwinnett Cty., Ga. v. Ashby , 354 Ga.App. ––––, ––––, 842 S.E.2d 70, 73 (2020) ; see OCGA § 51-3-20 (“The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.”).

19 OCGA § 51-3-23 (3) (emphasis supplied).

20 OCGA § 51-3-21 (1).

21
Mercer Univ. v. Stofer , 306 Ga. 191, 191, 830 S.E.2d 169 (2019).

22
Id. at 191, 830 S.E.2d 169.

23
Id. at 196 (2), 830 S.E.2d 169.

24
See
Nash , 220 Ga. App. at 117-18 (1), 469 S.E.2d 276 (“In the current case, the Association charges a little league registration fee, although this fee is waived as to any child in need of free service. The fee covers expenses such as uniforms for the children, umpires, lights, water and sanitation. Because the fee is needed to defray the costs of operating the league, and is not an admission price required for permission to enter onto the land, it is not a charge to the public as contemplated by the Act.”).

25 306 Ga. 191, 830 S.E.2d 169 (2019).

26
Id. at 200 (3), 830 S.E.2d 169 ; accord
Mercer Univ. v. Stofer , 354 Ga. App. 458, 461, 841 S.E.2d 224, 226 (1) (2020) (“Importantly, a landowner’s subjective profit motivations are irrelevant to the analysis.”).

27
Stofer , 306 Ga. at 196 (2), 830 S.E.2d 169.

28
Stofer , 354 Ga. App. at 461, 841 S.E.2d 224, 227-28 (1).

29
See id. at 462, 841 S.E.2d 224, 228 (1) (“To the extent that the concert series may have increased Mercer [University]’s name recognition and good will in the community, potential student interest in attending the university, or the likelihood that it would receive future grant funding, such speculative considerations and subjective motivations are not relevant to our analysis. Notably, there is no evidence that Mercer made a profit from the vendors, the sponsors, or … branded give-aways, nor is there evidence that it received a direct financial benefit from the concert series whatsoever. The fact that there might have been an indirect commercial benefit is not sufficient to create a factual question.” (citation omitted)).


Kentucky appellate court upholds the use of a release to stop claims from injuries using a zip line.

Plaintiff did not make very good arguments, and court pointed that out.

Bowling v. Mammoth Cave Adventures, LLC (Ky. Ct. App. 2020)

State: Kentucky: Commonwealth of Kentucky Court of Appeals

Plaintiff: Billy D. Bowling

Defendant: Mammoth Cave Adventures, LLC

Plaintiff Claims: (1) an employee of MCA negligently misrepresented that he could zip line despite being over the weight limit, (2) MCA was negligent in not lighting the course or landing area, and (3) the doctrine of equitable estoppel applies.

Defendant Defenses: Release

Holding: For the Defendant

Year: 2020

Summary

Release was sufficient to bar the claims of the plaintiff injured when arriving at the landing platform. More importantly, since the plaintiff did not argue any reasons why the release was invalid; the court really did not review the issues. Did the release the four requirements to be valid under Kentucky law, which it did? Case closed.

Facts

Facts are sparse, but then so is the legal arguments made by the plaintiff.

On June 10, 2017, Bowling went to MCA to zip line with his friends. Before engaging in the activity, Bowling signed a release of liability. Bowling injured his right ankle when approaching the landing platform.

The plaintiff then sued for negligence arguing “the zip lining course and landing ramp were unlit, which resulted in his injury.” There are also statements in the decision that there was a weight limit for people riding the zip line, but it was not a fact argued by the plaintiff.

The trial court granted the defendants motion for summary judgement, and the plaintiff appealed.

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

There were only two legal issues discussed by the appellate court. The first was whether the release was valid and stopped the plaintiff’s claims. Under Kentucky law, for a release to be valid.

…a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. “Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.”

However, the plaintiff failed to argue that the release did not meet the Kentucky requirements. The plaintiff raised no arguments that the release was not valid so the appellate court properly accepted the trial courts decision that it was. “Bowling fails to assert why the agreement at issue is unenforceable.”

The next issue was even a shorter discussion. The plaintiff brought up on appeal the issue that the release was void based on an estoppel argument. However, since that argument had not been raised in the lower court, it could not be argued on appeal. “It is axiomatic that a party may not raise an issue for the first time on appeal.

There was also a dissent to the opinion. The dissent made several arguments that the case should be sent back because the allegations in the complaint rose to the level of willful and wanton actions, which would not be covered by the release.

The dissent also made an argument that the release did not fully tell the plaintiff of the possible risks.

The release uses only the word “negligence.” The release does specifically and explicitly release MCA from liability for ordinary negligence claims. The language of the release is specific as to its purpose to exonerate MCA from ordinary negligence liability only. The release specifically warns that zip line activity is dangerous, without any detailed explanation or discussion.

We are seeing more cases with this argument. That a release needs more than just the legal clause that releases the defendant from his or her own negligence. The release also needs to explain the dangers of the activity to the possible plaintiff.

The final argument seems to be an extension of the above argument, that the release needs to point out specific risks to the signor.

Additionally, Bowling alleges there was no lighting on the landing, which is also a disputed factual issue, which would make an inherently dangerous activity even more dangerous. If true, this would clearly be an enhancement to the danger of the activity that would require, at minimum, disclosure and perhaps a warning. The release makes no reference to the lack of lighting on the landing and its enhancement of the dangerous activity.

So Now What?

Looking at a dissenting opinion does not help much in learning current law. The defendant won. However, the dissenting opinion can be important in making sure your release is up to any possible future changes to the law.

If the dissenting judge has more judges join the court that agree or the dissenting judge convinces other judges that his opinion has some important points, the dissent could be a majority opinion in the future. A win now, might not be a win in the future if your release is written to meet the needs of the law today and the possible changes in the law tomorrow.

What do you think? Leave a comment.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

Copyright 2022 Recreation Law (720) 334 8529

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Bowling v. Mammoth Cave Adventures, LLC (Ky. Ct. App. 2020)

BILLY D. BOWLING APPELLANT
v.
MAMMOTH CAVE ADVENTURES, LLC APPELLEE

NO. 2019-CA-000822-MR

Commonwealth of Kentucky Court of Appeals

APRIL 24, 2020

NOT TO BE PUBLISHED

APPEAL FROM BARREN CIRCUIT COURT
HONORABLE JOHN T. ALEXANDER, JUDGE
ACTION NO. 18-CI-00357

OPINION
AFFIRMING

** ** ** ** **

BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.

GOODWINE, JUDGE: Billy D. Bowling (“Bowling”) appeals the Barren Circuit Court’s order granting summary judgment in favor of Mammoth Cave Adventures, LLC (“MCA”). The circuit court found the exculpatory agreement between the parties was enforceable. On appeal, Bowling argues material facts precluded summary judgment. After careful review of the record, finding no error, we affirm.

On June 10, 2017, Bowling went to MCA to zip line with his friends. Before engaging in the activity, Bowling signed a release of liability. Bowling injured his right ankle when approaching the landing platform.

On June 8, 2018, Bowling filed suit against MCA in Barren Circuit Court alleging he was injured as a result of MCA’s negligence. He asserted the zip lining course and landing ramp were unlit, which resulted in his injury.

MCA moved for summary judgment, arguing the release of liability was an enforceable exculpatory agreement under Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). Because the agreement was enforceable, MCA was not liable for any alleged negligent conduct.

The circuit court heard MCA’s motion on February 25, 2019. On April 18, 2019, the circuit court entered an order granting summary judgment in favor of MCA. The circuit court examined the release of liability, which provides:

RELEASE OF LIABILITY

In consideration of being given the opportunity to participate in the zip line activities of Mammoth Cave Adventures, LLC, I, on behalf of myself, my personal representatives, assigns, heirs and next of kin, do hereby state as follows:

1. I acknowledge that participating in the zip line activity is dangerous. I understand the nature and rigors of the activity and the risk involved in participation.

2. I wish to participate in the zip line activities and as a result, I fully accept and assume all the risks and dangers involved in said activity and accept responsibility for all injuries, losses, costs and damages I incur as a result of the participation in the activity and I release and discharge and covenant not to sue the Mammoth Cave Adventures, LLC, for any liability, claims, damages, demands or losses which I has [sic] been caused by or alleged to have been caused by the actions or negligence of Mammoth Cave Adventures, LLC, and I will indemnify and save and hold it harmless from any litigation expenses, attorney fees, liabilities, damages or costs, it may incur as a result of any claim of mine to the fullness [sic] extent permitted by law.

3. I understand that I have released Mammoth Cave Adventures, LLC, and I have signed this document freely and without any inducement or assurance of any kind.

The circuit court applied the following four factors in determining the agreement was enforceable:

Specifically, a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. “Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.”

Id. at 47 (citations omitted).

Bowling subsequently filed a motion to alter, amend, or vacate, which the circuit court denied. This appeal followed.

“Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So we operate under a de novo standard of review with no need to defer to the trial court’s decision.” Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901, 905 (Ky. 2013) (citations omitted).

On appeal, Bowling does not contest the circuit court’s determination that the release of liability was enforceable under Hargis. Instead, he argues: (1) an employee of MCA negligently misrepresented that he could zip line despite being over the weight limit, (2) MCA was negligent in not lighting the course or landing area, and (3) the doctrine of equitable estoppel applies.

First, we address Bowling’s negligence arguments. By signing the release of liability, Bowling surrendered his “right to prosecute a cause of action” against MCA. Waddle v. Galen of Kentucky, Inc., 131 S.W.3d 361, 364 (Ky. App. 2004) (citation omitted). Although exculpatory agreements “are disfavored and are strictly construed against the parties relying upon them,” Bowling fails to assert why the agreement at issue is unenforceable. Hargis, 168 S.W.3d at 47 (citations omitted). He does not contest the circuit court’s thorough analysis under Hargis and does not raise a public policy argument under Miller as Next Friend of E.M. v. House of Boom Kentucky, LLC, 575 S.W.3d 656, 660 (Ky. 2019). Instead, Bowling asks this Court to consider whether MCA acted negligently. Bowling signed an exculpatory agreement agreeing not to sue MCA for any damages caused by its alleged negligence, which the circuit court found enforceable. Bowling has no factual basis for his claim against MCA as a matter of law because he signed an enforceable exculpatory agreement. As such, because this agreement cut off Bowling’s right to sue for the injuries he sustained, his allegation that MCA acted negligently does not amount to a genuine issue of material fact to survive summary judgment.

Furthermore, we decline to address Bowling’s equitable estoppel argument. Not only is it conclusory, he also failed to raise the argument before the circuit court. “It is axiomatic that a party may not raise an issue for the first time on appeal.” Sunrise Children’s Services, Inc. v. Kentucky Unemployment Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016) (citation omitted). “As this Court has stated on numerous occasions, ‘appellants will not be permitted to feed one can of worms to the trial judge and another to the appellate court.'” Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (quoting Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). As this argument is not properly before us and Bowling does not request review for palpable error under Kentucky Rules of Civil Procedure (“CR”) 61.02, we decline to address this argument.

For the foregoing reasons, we affirm the summary judgment of the Barren Circuit Court.

DIXON, JUDGE, CONCURS.

TAYLOR, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.

TAYLOR, JUDGE, DISSENTING. Respectfully, I dissent.

I must disagree with the majority and the trial court that the release form signed by Bowling satisfies all of the factors in Hargis, 168 S.W.3d 36. The release uses only the word “negligence.” The release does specifically and explicitly release MCA from liability for ordinary negligence claims. The language of the release is specific as to its purpose to exonerate MCA from ordinary negligence liability only. The release specifically warns that zip line activity is dangerous, without any detailed explanation or discussion. However, importantly for the claims in this case, there is no language that releases MCA from conduct that would constitute gross negligence under Kentucky law.

Bowling claims that an employee of MCA told him immediately prior to getting on the zip line that there was a weight limit, although it was not disclosed to Bowling before signing the release nor was it set out in the release.

This is a relevant disputed material issue of fact in my opinion. Additionally, Bowling alleges there was no lighting on the landing, which is also a disputed factual issue, which would make an inherently dangerous activity even more dangerous. If true, this would clearly be an enhancement to the danger of the activity that would require, at minimum, disclosure and perhaps a warning. The release makes no reference to the lack of lighting on the landing and its enhancement of the dangerous activity.

A weight limit for participants (and allowing overweight participants to access the zip line) and no lighting in the landing area could be construed as willful or wanton conduct for which a party may not contract away liability through a generic release, without full disclosure in my opinion. This type of release is disfavored under Kentucky law and requires a strict construction of the agreement against MCA that precludes summary judgment in this case. See Hargis, 168 S.W.3d at 47. These material issues of fact as disputed by the parties can only be resolved by a trier of fact and are not appropriately resolved by summary judgment. If the jury determines that MCA’s conduct was grossly negligent, the release would be unenforceable as to this conduct. Of course, under comparative negligence, the jury could also consider Bowling’s conduct in contributing to his injuries.

BRIEF FOR APPELLANT:

Michael L. Harris
Columbia, Kentucky

BRIEF FOR APPELLEE:

David E. Crittenden
Robert D. Bobrow
Louisville, Kentucky


New Jersey Federal District Court decision attempts to narrow New Jersey law on releases by restricting the scope of the release.

NJ only allows releases to be interpreted narrowly and can only cover one issue.

Martin v. Hudson Farm Club, Inc. (D. N.J. 2021)

State: New Jersey, United States District Court, D. New Jersey

Plaintiff: David Martin and Luisa Martin

Defendant: Hudson Farm Club, Inc.; Lukas Sparling; and Griffin & Howe, Inc.

Plaintiff Claims: Not stated specifically, obviously negligence

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2021

Summary

The New Jersey appellate court found a release was void because it was written to cover a shooing event and NJ law does not allow releases to be interpreted broadly to cover the injury the plaintiff suffered, falling out of a trailer.

Facts

On September 19, 2017, Martin participated in a charitable clay shooting event at HFC in Andover, New Jersey. Upon arriving at HFC, Martin signed a Release and Hold Harmless Agreement (the “Release“), which consists of three “Sections” on a single page. (

The clay shooting event had multiple starting stations at which the charity participants would begin their shooting activities. While the charity participants at certain locations walked to those locations, others-including Martin- were transported to their starting location in wagons pulled by vehicles. Defendant Sparling drove the vehicle which pulled the wagon in which Martin rode. In route to the station, the tractor ascended an incline and, during the ascent, the vehicle stalled. While Sparling engaged the vehicles’ brakes, the vehicle and attached wagon began skidding backwards. Martin at some point during the descent leapt from the wagon and suffered injuries as a result.

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

The decision by the trial court came on a Motion for Summary Judgement. This case was brought in the Federal court system where decisions of the trial court are reported. State courts do not report decisions until they have been appealed to the appellate courts above the trial courts. Consequently, decisions by trial courts in the Federal system should be understood to be trial court decisions and in cases like these federal judges interpreting state law.

The defendant in this case filed a motion for summary judgement to dismiss the case based on the release. This decision then is based solely on the paperwork presented to the court without a trail or evidentiary hearings.

To start there were some evidentiary issues that the court pointed out as the plaintiff tried to wiggle out of prior sworn testimony. The plaintiff testified under oath at his deposition. After a deposition, you have the right to correct mistakes made by the court reporter during the deposition. A lot of time a lot of corrections are made to clean up testimony. In this case, fighting the defendant’s motion for summary judgment, the plaintiff filed affidavits, sworn statements, there were contrary to his sworn testimony during his deposition.

At best, the testimony made during a deposition is used a trial to make the deponent look bad. The person on the stand says he saw ABC, and the opposing attorney asks if he remembers being deposed, and if he remembers stating he says XYZ. Either the person on the stand looks like a liar or wiggles he way out of the mess.

Here the judge just noticed the issue.

There can be no dispute that the Martin Affidavit attests to certain facts that are contrary to those which he testified under oath in prior sworn testimony. Martin’s deposition testimony clearly evidenced that he did not read the Release prior to signing the document…

Later, the judge closed the door on the plaintiff’s attempt to play the system by being deposed and stating one thing and then trying to change those sworn statements by providing affidavits that stated differently.

Martin cannot now-well after discovery closed and nearly two and half years after he was deposed-contradict his own testimony to give rise to a dispute of material fact in connection with the Parties’ competing motions. This is plainly improper, and the affidavit will be set aside as a sham affidavit.

The court then went into whether the release was valid under New Jersey law. New Jersey has a plain language statute, Plain Language Review Act (“PLRA”), N.J.S.A. 56:12, that applies to all consumer contracts. The statute has six factors the court must review to make sure the consumer contract does not violate the statute.

The statute sets forth six non-exclusive factors that a court “may consider” in its determination of whether a consumer contract is “clear, understandable and easily readable, ” including:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

The court found, other than the font size, that the release did not violate the plain language statute. However, the court found that since the plaintiff admitted he never read the release; the size of the font could not have any bearing on the legal issues.

New Jersey has a four-point test the release must meet to be valid.

…will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

The court started out reviewing why releases in these cases are such a problem in American law. US law in all fifty states requires business owners to keep their premises safe for their guests. Safe does not mean the elimination of the inherent risk of entering into a business or the open and obvious risk upon entering the premises. Nor is the business owner liable beyond the “ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.”

A release, therefore, waives the duties of a business owner to keep the premises safe. That bothers most courts hence you get the line “reviewed with enhanced scrutiny,” “views such exculpatory releases with disfavor,” “looked upon unfavorably” or “subject to close judicial scrutiny.” These are legal terms of art used to identify this chasm in the legal field. The duty of a business owner to keep the premises safe and ability for two parties to freely contract.

In this case, this issue allowed the court to look at the release only as to the risky activity, not broadly for any injury that could befall the plaintiff. As such, the release was for injury for engaging in shooting sports, not for riding on a trailer. The release is not reviewed broadly in New Jersey, thus the injury the plaintiff suffered since it was not from engaging in a shooting sports activity, was not covered.

By contrast, New Jersey courts will set aside exculpatory clauses where a potential claim arises from an activity that is not squarely within the ambit of the risky activity offered by an establishment.

The court further divided the risks in its analysis.

Here, the “inherent risky nature” of Defendants’ firearm business was immaterial to the injury Martin suffered. Martin’s injury occurred while he was being transported in a tractor-pulled wagon to his starting shooting location. The Release, while clearly referring to various elements of using a firearm-such as the “rental, instruction, [or] use . . . of firearms” and “discharge of firearms and firing of live ammunition”- does not self-evidently concern transportation while on the property.

The court then went on and held that were so disputed material facts, facts that can only be decided by a jury, that summary judgement could not be granted. This issue came back to whether or not the plaintiff had time to review the release before signing.

The court then circled back around to the “time to sign” issues. The plaintiff stated:

However, Plaintiffs contend that Martin had a limited opportunity to review and consider the Release prior to assenting to its terms. When asked at his deposition why he failed to read the Release, Martin testified that “there was about twenty people in line behind me, and we were a press for time to get the events started.

The court felt that this situation created “procedural unconscionability” if the plaintiff felt rushed to sign the release. If a release is unconscionable, then it is void in New Jersey. This is the fourth test to determine if a release is valid under New Jersey law.

A long appellate court opinion to determine two legal arguments as to why a release would not stop the claims of the plaintiff.

So Now What?

New Jersey is sliding into one of those states where releases are difficult to write. Over a decade ago the court held a parent could not sign away a minor’s right to sue, and this decision is following down the path of narrowing what a release can accomplish.

The issue that is frustrating is whether or not the plaintiff had time to read the release before signing. The law consistently states if you signed the document you read the document.

To prevent this from happening in your business you should do several things. First make sure you tell everyone who may be attending your event, program or business that they must sign a release. Second, make sure you make the release available to everyone in advance. Put the release on your website and allow participants and guests to download the release in advance of attending. Third put language in the release that states the signor agrees they have had ample time to read and review the release, and they understand what they are signing and what the effects of their signing will be.

It is also interesting that after finding the release did not protect against the plaintiff’s claims because the release was too broad, it also developed the defense of unconscionability which also sent the release back to trial.

It is also interesting that because the plaintiff admitted to not reading the release, the court found this did not violate the New Jersey consumer contract law, and then later found because he said he had no time to read the release; it was improper to hold him to the release.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

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Martin v. Hudson Farm Club, Inc. (D. N.J. 2021)

DAVID MARTIN and LUISA MARTIN, Plaintiffs,
v.
HUDSON FARM CLUB, INC.; LUKAS SPARLING; and GRIFFIN & HOWE, INC Defendants.

Civil Action No. 18-02511

United States District Court, D. New Jersey

December 31, 2021

NOT FOR PUBLICATION

OPINION

Stanley R. Chesler, United States District Judge

This matter comes before the Court on the motions for summary judgment filed by Defendants Hudson Farm Club (“HFC”) and Lukas Sparling (collectively, the “HFC Defendants”), and Defendant Griffin & Howe, Inc. (“G&H” and, collectively with the HFC Defendants, “Defendants”), respectively, as to certain affirmative defenses which Defendants have asserted, pursuant to Federal Rule of Civil Procedure 56, and the motion filed by Plaintiffs David and Luisa Martin (“Plaintiffs”)[1] to strike those same affirmative defenses. As described, infra, the Court will convert Plaintiffs’ motion to strike into a competing motion for summary judgment concerning Defendants’ affirmative defenses. The Court has reviewed the papers submitted and proceeds to rule without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Plaintiffs’ motion for summary judgment will be granted and Defendants’ motions for summary judgment will be denied.

I. Background[2]

On September 19, 2017, Martin participated in a charitable clay shooting event at HFC in Andover, New Jersey. (Pls.’ 56.1 Statement ¶ 1, 22-23; HFC 56.1 Statement ¶ 1; G&H 56.1 Statement ¶ 1.) Upon arriving at HFC, Martin signed a Release and Hold Harmless Agreement (the “Release”), which consists of three “Sections” on a single page. (Pls.’ 56.1 Statement ¶ 2; HFC 56.1 Statement ¶ 8; G&H 56.1 Statement ¶ 2.) Section I of the Release reads:

I HAVE BEEN ADVISED THAT THE RECREATIONAL USE OF FIREARMS IS AN INHERENTLY DANGEROUS ACTIVIT WHICH CAN AND DOES RESULT IN SERIOUS BODILY INJURY AND/OR DEATH ESPECIALLY IF SAFETY RULES ARE NOT OBEYED

In return for the use of the premises and equipment, I agree to indemnify, hold harmless and defend [G&H], [HFC] and [non-party] IAT Reinsurance Company Ltd. and its instructors, employees, directors, officers, agents, representatives, heirs, successors, and assigns from and against any and all claims, demands, causes of action, personal injury (including death), damages, costs, and expenses (including attorney’s fees), arising out of, related to, or connected with the rental of a firearm, instruction, use or discharge of firearms. I hereby further agree, on behalf of myself, executors and assigns, that I will not make any claim or institute any suit or action at law or in equity against [G&H], [HFC] and IAT Reinsurance Company Ltd. Related [sic] directly or indirectly to my use of the firearm referenced in this document or from my use or participation in any activity on this property. I expressly assume the risk of taking part in the activities on the premises, which include the discharge of firearms and firing of live ammunition.

Section II is entitled “FIREARM RENTAL USE” and requires that the signatory attest that they are “not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3, ” concerning the purchase of firearms, and further requires that the signatory certify to other statements relevant to the individual’s rental of a firearm.[3] Section III is entitled “CONSENT FOR USE OF LIKENESS.” While Sections I and II bear Martin’s signature, Section III does not.

By his signature to Section I of the Release, Martin acknowledged that “[he] carefully read this agreement and fully underst[ood] its contents, ” (ii) that he was aware that the Release was an important legal document, and (iii) that he intended to be “fully bound by it.” (Pls.’ 56.1 Statement ¶ 16; HFC 56.1 Statement ¶ 9; G&H 56.1 Statement ¶ 4.) Notwithstanding this, Martin testified that he signed the Release without reading it.[4] (HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 5; Martin Dep. Tr. at 44:3-25.)

The clay shooting event had multiple starting stations at which the charity participants would begin their shooting activities. (HFC 56.1 Statement ¶ 2; G&H 56.1 Statement ¶ 6.) While the charity participants at certain locations walked to those locations, others-including Martin- were transported to their starting location in wagons pulled by vehicles. (Pls.’ 56.1 Statement ¶¶ 26; HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 6.) Defendant Sparling drove the vehicle which pulled the wagon in which Martin rode. (HFC 56.1 Statement ¶ 3; G&H 56.1 Statement ¶ 8.) In route to the station, the tractor ascended an incline and, during the ascent, the vehicle stalled. (HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 9.) While Sparling engaged the vehicles’ brakes, the vehicle and attached wagon began skidding backwards. (HFC 56.1 Statement ¶ 4; G&H 56.1 Statement ¶ 9.) Martin at some point during the descent leapt from the wagon and suffered injuries as a result. (HFC 56.1 Statement ¶ 5; G&H 56.1 Statement ¶ 10.)

II. Discussion

Defendants bring their motions pursuant to Federal Rule of Civil Procedure 56 seeking summary judgment as to their respective affirmative defenses of release and waiver as a result of the Release, while Plaintiffs’ motion is styled as a motion to strike those affirmative defenses. Notwithstanding that the Parties have pursued motions under different rules, those motions concern solely the validity of the Release.[5]

Rule 12(f) of the Federal Rules of Civil Procedure, concerning a motion to strike, allows this Court to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” in a pleading. Fed.R.Civ.P. 12(f). However, a motion to strike may be treated as a motion for partial summary judgment under Rule 56(d) when facts outside the pleadings are offered. See, e.g., United States v. Manzo, 182 F.Supp.2d 385, 395 n.6 (D.N.J. 2000) (“Because both parties refer to matters outside the pleadings and for the sake of consistency and clarity, the Court will generally treat the motion to strike as a motion for summary judgment.”); see also 5A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1380, at 647 (“[S]ome courts, when faced with affidavits on a Rule 12(f) motion to strike a defense, have treated the motion to strike as one for partial summary judgment.”).

In addition to the Parties’ initial submissions indicating their apparent understanding that they intended the Court to consider their motions on the evidentiary record established over the past three and a half years, the Court on October 1, 2021 ordered that the Parties comply with Rule 56(a) in setting forth that evidentiary record. In light of the facts presented in the various Rule 56.1 Statements and declarations and in consideration of the arguments set forth in the voluminous briefing before the Court, it makes little sense to treat Plaintiffs’ motion as a Rule 12(f) motion to strike a defense. Here, seeing no prejudice to Plaintiffs who have briefed the issue sufficiently and had the opportunity to proffer evidence in support of their arguments, the Court will exercise its discretion and consider Defendant’s Rule 12(f) motion to strike as a Rule 56(a) motion for partial summary judgment.

In evaluating the competing motions, the Court applies the well-established legal standard for summary judgment. Rule 56(a) provides that a “court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (construing the similarly worded Rule 56(c), predecessor to the current summary judgment standard set forth in Rule 56(a)). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a district court “must view the evidence ‘in the light most favorable to the opposing party.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). It may not make credibility determinations or engage in any weighing of the evidence. Anderson, 477 U.S. at 255; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (holding same).

A. The Evidentiary Record Properly Before the Court.

Once the moving party has satisfied its initial burden, the nonmoving party must establish the existence of a genuine issue as to a material fact to defeat the motion. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). To create a genuine issue of material fact, the nonmoving party must come forward with sufficient evidence to allow a jury to find in its favor at trial. Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001), overruled on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int’l Union of Operating Eng’rs and Participating Emp’rs, 134 S.Ct. 773 (2014). The party opposing a motion for summary judgment cannot rest on mere allegations; instead, it must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (holding that “unsupported allegations in [a] memorandum and pleadings are insufficient to repel summary judgment”).

1. The Court Will Disregard Plaintiffs’ Responses to Defendants’ Rule 56.1 Statements in Support of Defendants’ Respective Motions for Summary Judgement.

Rule 56(c)(1) expressly requires a party who asserts that a fact is genuinely disputed to support that assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). If the non-movant fails to “properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2). In the District of New Jersey, Local Civil Rule 56.1 imposes an additional requirement on both movants and non-movants related to summary judgment motions. The party moving for summary judgment must file a statement which lists, in separately numbered paragraphs, material facts the movant asserts are not in dispute, with citations to the specific portions of the record supporting those factual assertions. In turn, the party opposing summary judgment “shall furnish, with its opposition papers, a responsive statement of material facts, addressing each paragraph of the movant’s statement, indicating agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to the affidavits and other documents submitted in connection with the motion.” L. Civ. R. 56.1(a). Indeed, the local rule warns that “any material fact not disputed [in such a responsive statement] shall be deemed undisputed for purposes of the summary judgment motion.” Id.

On August 23, 2021, in connection with Plaintiffs’ Motion (ECF No. 124), Plaintiffs submitted, among other things, the certification of their counsel, Howard R. Engle. (ECF Nos. 124-1; 124-3.) Mr. Engle’s certification, which purported to be factual in nature, consisted of (i) facts not within his personal knowledge, (ii) legal arguments, and (iii) conclusions of law. (ECF No. 124-1.) Furthermore, in connection with Plaintiffs’ September 15, 2021 opposition to Defendants’ respective motions, Plaintiffs submitted “Certification[s] and Statement[s] of Undisputed Facts” by Mr. Engle. (ECF Nos. 129-1; 130-1.) These documents were far from the “responsive statement[s] of material facts” required pursuant to Local Rule 56.1(a).[6] Rather than “indicating agreement or disagreement” with “each paragraph” of Defendants’ Rule 56.1 Statements as required by the Rules, Plaintiffs proceeded to set forth dozens of their own purportedly “undisputed material facts.”[7] In light of these procedural improprieties, on October 1, 2021, the Court struck certain certifications which Plaintiffs submitted in support of their Motion and in Opposition to Defendants Motions and, to establish an orderly recounting of the material facts, ordered that Plaintiffs file: (i) a statement of material facts not in dispute in support of their motion, pursuant to Local Rule 56.1(a) and (ii) proper statements of material facts not in dispute in response to those submitted by Defendants in support of their respective motions. (ECF No. 138).

While Plaintiffs complied with the command to submit a Rule 56.1 statement in support of their motion, they again failed to submit responses to Defendants’ respective Rule 56.1 statements in a manner which complied with the Rules. Instead of making a submission consistent with the Rules, Plaintiffs again submitted statements of purported facts that are unmoored from and unresponsive to those statements which Defendants submitted. Plaintiffs have now twice failed to comply with Rule of Federal Civil Procedure 56.1 and Local Rule 56.1-including after the Court’s express order that Plaintiffs do so-by failing to address, on a paragraph-by-paragraph basis, the material facts as set forth in the Defendants’ Rule 56.1 Statements. Plaintiffs have provided no explanation for their repeated and continued violation of the Rules.

However, Plaintiffs’ Rule 56.1 Statement in support of their motion-which Plaintiffs submitted pursuant to the Court’s October 1 Order-is sufficiently in conformance with Rule 56.1 to allow the Court to consider it in the evidentiary record. Accordingly, the Court will disregard their responses and will consider Defendants’ Rule 56.1 Statements in support of their respective motions as undisputed, except to the extent which Defendants’ Rule 56.1 Statements may be tension with Plaintiffs’ Rule 56.1 Statement.

2. Martin’s September 16, 2021 Affidavit Will Be Set Aside Under the Sham Affidavit Doctrine.

In connection with the instant motions, Martin submits an affidavit (ECF Nos. 129-4; 130-4; 133-1; 134-1, the “Martin Affidavit”)[8] which Defendants ask the Court to set aside as a “sham affidavit” designed to defeat their motions for summary judgment. “[I]f it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit evidentiary weight . . . .” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (2007) (internal citations omitted). The timing of the affidavit, whether there is a plausible explanation for the contradictory statements, and whether there is independent evidence in the record supporting the affidavit, may be considered when determining whether an affidavit is a sham. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268-69 (3d Cir. 2010).

There can be no dispute that the Martin Affidavit attests to certain facts that are contrary to those which he testified under oath in prior sworn testimony. Martin’s deposition testimony clearly evidences that he did not read the Release prior to signing the document:

[PLAINTIFFS’ COUNSEL]: Did you read it before you signed it?

[MARTIN]: No, I did not.

Q. [Counsel for HFC] Why didn’t you read it before you signed it?

A. There was about twenty people in line behind me and we were in a press for time to get the events started.

Q. So you didn’t know what you were signing? –

A. At the time I did not know what I was signing and until I just read it just now, I didn’t know what I signed.

Q. You always sign things without knowing what you signed?

A. From time to time apparently, yes.

Q. Well in this – –

A. In this instance, yes, I did not read it.

(Martin Dep. Tr. at 44:3-25.) Martin now certifies that “he did not read the release entirely before [he signed] it” and that he “tried to read [the Release]” prior to signing the document (Martin Aff. ¶¶ 16-17). Acknowledging that this recounting of the facts is at odds with his prior testimony, Martin goes so far as to assert that “[w]hile [during the deposition] I said I did not read it, what I meant was that I couldn’t read the whole thing carefully.” (Martin Aff. ¶ 19.) He further asserts that he “was able to skim it and did read what was big enough and what I could understand.” (Martin Aff. ¶ 20.) Counsels’ questions-including that which Martin’s own counsel posed-during Martin’s deposition were perfectly clear, as were his responses. He did not equivocate in his recollection of the facts and repeated it on multiple occasions during the deposition. This is not a discrepancy which merely relates to the weight of the evidence at issue, and instead is a direct contradiction of his prior testimony. Cf. Jiminez 503 F.3d at 254 (“[C]orroborating evidence may establish that the affidavit was ‘understandably’ mistaken, confused, or not in possession of all the facts during the previous deposition.”). Martin cannot now-well after discovery closed and nearly two and half years after he was deposed-contradict his own testimony to give rise to a dispute of material fact in connection with the Parties’ competing motions. This is plainly improper, and the affidavit will be set aside as a sham affidavit.[9]

3. Plaintiffs’ Submission of an Affidavit by a Forensic Document Examiner is Improper and Will Be Set Aside.

In a similar vein, Plaintiffs submit the affidavit of John Paul Osborn, a forensic document examiner, and accompanying exhibits demonstrating Osborn’s credentials in connection with the motions. (ECF Nos. 129-3; 130-3; 133-2; 134-2, the “Osborn Affidavit”.) This too will be excluded from the Court’s consideration in resolving these motions.

Pursuant to Rule 26(a)(2), “a party must make [expert] disclosures at the times . . . that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). The disclosures must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. Fed.R.Civ.P. 26(a)(2)(B). “Expert disclosure requirements are meant to ensure the playing field remains level, to afford the opposing party an opportunity to challenge the expert’s qualifications and opinions, and to avoid undue prejudice and surprise.” Bouder v. Prudential Fin., Inc., No. CIV.A.06-4359(DMC), 2010 WL 2026707, at *2 (D.N.J. May 21, 2010). Rule 37 of the Federal Rules of Civil Procedure further provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

In evaluating whether a non-disclosure warrants exclusion, the Third Circuit has identified four factors to consider: “(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure the prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with a court order or discovery obligation.” Nicholas v. Pa. State Univ., 227 F.3d 133, 148 (3d Cir.2000). The party who has failed to disclose information bears the burden to show that the non-disclosure was substantially justified or is harmless. See D&D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, 2006 WL 1644742, at *4 (D.N.J. June 8, 2006). Ultimately, whether to exclude evidence is left to the trial court’s discretion. Fed.R.Civ.P. 37(c)(1)(A)-(C); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.1995) (“[T]he imposition of sanctions under Rule 37 is a matter within the discretion of the trial court.”).

On June 25, 2020, Magistrate Judge Waldor entered an Order which granted Defendants’ Motion to Amend/Correct the Answer to the Amended Complaint regarding Defendants’ affirmative defenses relating to the Release. (ECF No. 82.) The Order further “permit any discovery necessary to explore” the defenses. (Id. at 7.) Plaintiffs subsequently retained Osborn on February 26, 2021. (Osborn Aff. at 24.) On June 21, 2021, the Parties reported in a letter to the Court that discovery concerning the Release had been completed. (ECF No. 118.)

Plaintiffs evidently contemplated prior to the June 21 submission that Osborn may proffer a report in connection with this action, yet openly represented to the Court in the June 21 Letter that discovery was complete. Plaintiffs offer no explanation as to why the Court should entertain this untimely submission, let alone do they demonstrate why this delinquency is substantially justified or harmless.

Upon consideration of the factors which the Third Circuit outlined in Nicholas, the Court finds that exclusion of the Osborn Affidavit is warranted. This last-minute disclosure is both prejudicial and a surprise. The Osborn Affidavit was not provided until Defendants were under a deadline to prepare and file their reply brief, and Defendants have had no opportunity to cross-examine the proffered expert’s credentials and statements. Furthermore, allowing Plaintiffs to rely upon the Osborn Affidavit would interfere with the pending motions, and Defendants would be unable to cure such prejudice without the reopening of expert discovery, thus expending additional time, resources and money and further delaying resolution of the motions. See, e.g., Brooks v. Price, 121 Fed.Appx. 961, 965 (3d Cir. 2005). Whether or not Plaintiffs acted in bad faith, these factors are sufficient to warrant the exclusion of the Osborn Affidavit.[10]

B. The Release Does Not Violate the New Jersey Plain Language Review Act

New Jersey sets forth certain guidelines regarding consumer contracts-such as the Release-under the Plain Language Review Act (“PLRA”), N.J.S.A. 56:12. Section 2 of the PLRA requires that a consumer contract “shall be written in a simple, clear, understandable and easily readable way.” N.J.S.A. 56:12-2. The PLRA is designed so that consumer contracts “use plain language that is commonly understood by the wide swath of people who comprise the consuming public.” Kernahan v. Home Warranty Adm’r of Florida, Inc., 236 N.J. 301, 321 (2019). “With such protections in place . . . ‘[a] party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.'” Id. (citing Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992) (internal citation omitted)).

According to the PLRA, “[a] creditor, seller, insurer or lessor who fails to comply with section 2 of this act shall be liable to a consumer who is a party to the consumer contract for actual damages sustained, if the violation caused the consumer to be substantially confused about the rights, obligations or remedies of the contract . . .” N.J.S.A. 56:12-3. The statute sets forth six non-exclusive factors that a court “may consider” in its determination of whether a consumer contract is “clear, understandable and easily readable, ” including:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J.S.A. 56:12-10. Furthermore, the PLRA provides that “[c]onditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.” Id. The Court maintains broad discretion in its determination of how much consideration should be given to the factors individually and collectively. Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Plaintiffs contend that the Release runs afoul of the PLRA in numerous ways and, accordingly, that the Release must be set aside on statutory grounds. Primary among these arguments is Plaintiffs’ contention that the font size in the Release does not meet the requirement that it be “in at least 10 point type.” (Pls.’ Mot at 16.)[11] Plaintiffs further allege that the Release is in violation of the PLRA because it contains: (i) confusing cross references; (ii) sentences of greater length than necessary; (iii) sentences with double negatives and exceptions to exceptions; (iv) sentences and sections that are in confusing or illogical order; (v) the use of words with obsolete meaning or words that differ in their legal meaning from their common ordinary meaning; (vi) sections that are not logically divided and captioned; and (vii) conditions and exceptions to the main promise of the agreement do not have equal prominence. (Pls.’ Mot. at 17.)

Apart from Plaintiffs’ challenge to the font size found within the relevant language of the Release, Plaintiffs’ complaints amount to a mere recitation of the PLRA factors and Plaintiffs fail to establish how these other factors weigh in their favor. Indeed, upon the Court’s review of the Release, it finds that none of these elements exist within the Release.[12]

Even accepting that the font size may be smaller than the 10-point font guideline outlined in the PLRA, the waiver provision in this case is no less prominent than the remainder of the agreement: The document itself is entitled “SHOOTING SCHOOL AT HUDSON FARM – RELEASE & HOLD HARMLESS AGREEMENT, ” the waiver provision constitutes Section I of the Release, critical elements of the waiver provision are bolded and capitalized, and the font size of the waiver provision is similar to the font used throughout the one-page document. The fact that the font size of the relevant language may be marginally smaller than the statutory guidelines does not violate the mandate that the Release be “simple, clear, understandable and easily readable.” See, e.g., Kang v. La Fitness, 2016 WL 7476354, at *10 (D.N.J. Dec. 29, 2016) (finding the waiver provision in the relevant exculpatory clause was no less prominent than the remainder of the agreement where the font throughout the document was “about size 8”).[13]

In any event, all of Plaintiffs’ complaints are academic: Martin could not have been confused by the Release because he never read it. Inherent in any violation of the PLRA is that a contract that is not “clear, understandable and easily readable” must “cause[]” a consumer’s “substantial confusion” regarding the contents of the contract. N.J.S.A. 56:12-3 (emphasis added); see, e.g., Sauro v. L.A. Fitness Int’l, LLC, No. 12-3682, 2013 WL 97880, at *12 (D.N.J. Feb. 13, 2013) (citing Bosland v. Warnock Dodge. Inc., 396 N.J.Super. 267, 279 (App. Div. 2007), aff’d on other grounds, 197 N.J. 543 (2009)) (“New Jersey courts have held that a . . . plaintiff must allege that she was ‘substantially confused’ about the contract’s terms, as ‘substantial confusion’ is ‘a requirement of the Plain Language Act.'”). Accordingly, the Release could not have served to “substantially confuse” Plaintiff, and his challenge under the PLRA must fail as a matter of law.

C. The Release is Unenforceable Against Plaintiffs.

As a general and long-standing matter, contracting parties are afforded the liberty to bind themselves as they see fit. See Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356 (1931); Walters v. YMCA, 437 N.J.Super. 111, 117-18 (App. Div. 2014) (“The Court must give ‘due deference to the freedom to contract and the right of competent adults to bind themselves as they see fit.'”). However, certain categories of substantive contracts, including those that contain exculpatory clauses, are disfavored and thus have been subjected to close judicial scrutiny. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 303 (2010) (citing 11 Williston on Contracts, § 30:9, at 103-04). New Jersey courts have identified four considerations pertinent to the enforcement of an exculpatory agreement, advising that such an agreement:

will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. at 304 (quoting Gershon, Adm’x Ad Prosequendum for Est. of Pietroluongo v. Regency Diving Ctr., Inc., 368 N.J.Super. 237, 248 (App. Div. 2004)).[14]

1. The Release is Inimical to the Public Interest as Applied to Plaintiffs’ Claims

The common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm. Id. at 306 (“[B]usiness establishments in New Jersey have well-established duties of care to patrons that come upon their premises.”). In light of this duty, “[t]he law does not favor exculpatory agreements because they encourage a lack of care.” Gershon, 368 N.J.Super. At 247. But “public policy does not demand a per se ban against enforcement of an exculpatory agreement based on the mere existence of a duty recognized in the common law in respect of premises liability.” Stelluti, 203 N.J. at 306. “[T]he law recognizes that for certain activities conducted by operation of some types of business, particularly those that pose inherent risks to the participant, the business entity will not be held liable for injuries sustained so long as [the business] has acted in accordance with ‘the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.'” Id. at 307 (quoting Hojnowski v. Vans Skate Park, 187 N.J. 323, 340-41 (2006)). For example, “[w]hen it comes to physical activities in the nature of sports-physical exertion associated with physical training, exercise, and the like-injuries are not an unexpected, unforeseeable result of such strenuous activity.” Id.

Defendants cite Justice LaVecchia’s dissent in Hojnowski to argue that “recreational activities such as skateboarding do not implicate the public interest” and therefore clay shooting- itself a recreational activity-cannot implicate the public interest. (HFC Opp. at 14-15.) Defendants’ position would result in a per se enforcement of unbounded waivers of liability in the context of recreational activities, which is plainly contrary to New Jersey jurisprudence. As the Stelluti court acknowledged, there remains a standard for liability even in contact recreational sports. Id. at 311 (“[T]here is also a limit to the protections that a private fitness center reasonably may exact from its patrons through the mechanism of an exculpatory agreement.”). In particular, Stelluti requires that business owners be held “to a standard of care congruent with the nature of their business.” Id. at 312.

The scope of the liability that may be waived in connection with recreational activities was explored in Walters. 437 N.J.Super. 111. There, the Appellate Division considered the enforceability of an exculpatory agreement where a patron at a fitness club sued the club for personal injuries he sustained when he slipped and fell on an allegedly negligently maintained stair tread leading to club’s pool. Id. at 118-19. The hold harmless provision within the patron’s membership agreement released the club for injuries sustained by the patron “WHILE ON ANY YMWCA PREMISES OR AS A RESULT OF A YMWCA SPONSORED ACTIVITIES [SIC].” Id. at 116 (emphasis in original). In refusing to enforce the broader clause of the exculpatory agreement-concerning injuries sustained “while on any YMWCA premises”-the Appellate Division found that “if applied literally, [the clause] would eviscerate the common law duty of care owed by defendant to its invitees, regardless of the nature of the business activity involved.” Id. at 118-19. This, the Walters panel continued, “would be inimical to the public interest because it would transfer the redress of civil wrongs from the responsible tortfeasor to either the innocent injured party or to society at large, in the form of taxpayer-supported institutions.” Id. at 119. While the court refused to enforce this broader reading of the exculpatory agreement, it still proceeded to consider whether the patron’s injury fell within the ambit of the narrower exculpatory clause. Id. at 120 (finding that an accident resulting from slipping on the steps leading into the pool did not occur while the plaintiff was “using the pool” and thus was not a “sponsored activit[y]” covered by the exculpatory agreement.).

Similar to the waiver at issue in Walters, if the terms of the Release are applied literally- to “any activity” on the property-Defendants would be released from any claim arising while an invitee was on the property “regardless of the nature of the business activity involved.” Id. at 118- 19.[15] Such a broad waiver of liability then constitutes an exculpatory agreement that is “inimical to the public interest.” Id. at 119.

While the literal reading of the Release cannot be sustained, Defendants are free to craft a release with regard “to a standard of care congruent with the nature of their business.” Stelluti, 203 N.J. at 312. To that end, other exculpatory clauses within the Release are tailored to the nature of Defendants’ business insofar as they limit the release to firearm-related activities. (See Release (“In return for the use of the premises and equipment, I agree to indemnify [Defendants] from and against any and all claims . . . arising out of, related to, or connected with the rental of a firearm, instruction, use or discharge of firearms;” “I hereby further agree . . . that I will not make any claim or institute any suit . . . directly or indirectly to my use of the firearm referenced in this document . . .;” or “I expressly assume the risk of taking part in the activities on the premises, which include the discharge of firearms and firing of live ammunition.”).) The question thus becomes whether Martin’s injury occurred in connection with a firearm-related activity.[16]

New Jersey courts narrowly construe exculpatory waivers in light of Stelluti‘s admonition that they are disfavored. Walters, 437 N.J.Super. at 328 (“Any ambiguities in language about the scope of an exculpatory agreement’s coverage, or doubts about its enforceability, should be resolved in favor of holding a tortfeasor accountable.”). Courts will enforce an exculpatory clause where a claim is “not an unexpected, unforeseeable result of” the risky activity offered by a facility. Stelluti, 203 N.J. at 307; see, e.g., Pulice v. Green Brook Sports, 2017 WL 3013086 (N.J.Super.Ct.App.Div. July 17, 2017) (finding a fitness club’s release enforceable as to plaintiff when a ten-pound dumbbell fell on her face as her trainer handed it to her to perform an exercise); Skarbnik v. Life Time Fitness, Inc., 2021 WL 3923270, at *4 (N.J.Super.Ct.App.Div. Sept. 2, 2021) (upholding fitness club’s release where plaintiff slipped on sweat immediately following a hot yoga class, because sweat on the floor “was a natural consequence” of the activity); Kyung Pak v. N.J. Fitness Factory, Inc., No. A-5084-16T2, 2018 WL 1865462, at *1 (N.J.Super.Ct.App.Div. Apr. 19, 2018) (release enforced when a fitness club employee directed plaintiff to step onto a running treadmill during an exercise class); Kang, 2016 WL 7476354, at *10 (release enforced where plaintiff injured while using a fitness machine). By contrast, New Jersey courts will set aside exculpatory clauses where a potential claim arises from an activity that is not squarely within the ambit of the risky activity offered by an establishment. See, e.g., Walters, 437 N.J.Super. at 111 (accident resulting from slipping on the steps leading into the facility’s pool not considered a “sponsored activity” subject to the release); Crossing-Lyons v. Towns Sports Int’l, Inc., 2017 WL 2953388, at *1 (N.J.Super.Ct.App.Div. July 11, 2017) (release inapplicable where plaintiff tripped over a weight belt left on the floor, an “incident[] that could have occurred in any business setting”); see also Martinez-Santiago v. Public Storage, 38 F.Supp.3d 500 (D.N.J. 2014) (refusing to enforce exculpatory agreement where patron sustained slip-and-fall injuries on ice on a walkway at a self-storage facility).

Defendants contend that “transportation while at HFC” constitutes an activity associated with sporting clay shooting, and the injury occurred within the scope of the Release. (E.g. HFC Mot. at 14.) In making this argument, Defendants analogize sporting clay shooting to golf, with G&H contending that transportation by way of a tractor and wagon is “similar to a golf event” insofar as it was “necessary so that the participants could stagger their starting locations. ((G&H Mot. at 6.) (“To find that attending a sporting clay event does not include transportation from one station to the next is like finding that playing golf does not start until golfers tee off, ends as soon as they retrieve their balls from the cup, and does not begin again until they tee off, and so on. Sporting clay shooting, like playing golf, includes all of the activities associated with attendance at the event, including transportation throughout the course.”).) These arguments “ignore[] the cause of the accident.” Walters, 437 N.J.Super. at 120. Here, the “inherent risky nature” of Defendants’ firearm business was immaterial to the injury Martin suffered. Martin’s injury occurred while he was being transported in a tractor-pulled wagon to his starting shooting location. The Release, while clearly referring to various elements of using a firearm-such as the “rental, instruction, [or] use . . . of firearms” and “discharge of firearms and firing of live ammunition”- does not self-evidently concern transportation while on the property.[17] Much like the Appellate Division’s refusal to consider “an accident resulting from slipping on the steps leading into the pool . . . covered under the ‘activities’ part of” the release clause in Walters, Plaintiffs claims do not arise in connection with the activities involved with using a firearm. 437 N.J.Super. at 111. Instead, Plaintiffs’ claims are more akin to a “garden variety” personal injury action. Id. Accordingly, the exculpatory clause of the Release is void and unenforceable as to Plaintiffs’ claims.[18]

2. Even if the Release Applied to the Wagon Ride, Disputes Over Material Facts Would Preclude Summary Judgment.

Even if the Court accepted that transportation to the shooting range is covered under the Release, the application of the final factor relevant to the enforcement of an exculpatory clause under New Jersey law-that the contract does not grow out of unequal bargaining power or is otherwise unconscionable-gives rise to a dispute of material facts. Gershon, 368 N.J.Super. at 248. “Procedural unconscionability requires examination of ‘unfairness in the formation of the contract’ while substantive unconscionability considers whether the contract’s terms are ‘excessively disproportionate.” Marcinczyk v. State of New Jersey Police Training Com’n, 406 N.J.Super. 608 (2009). In ascertaining whether a contract is unconscionable, these substantive and procedural aspects are subjected to a sliding-scale analysis. Delta Funding Corp. v. Harris, 189 N.J. 28, 40 (2006).

Plaintiffs assert that the Release is substantively unconscionable insofar as it should “shock the Court’s conscience” that “Defendants sought to release themselves from all responsibility to paying guests at their business.” (Mot. at 31.) Courts routinely uphold exculpatory releases, particularly concerning recreational activities, and Plaintiffs offer no meaningful argument as to how the Release departs from other exculpatory releases in such a manner as to shock the conscience.

Similarly, many of Plaintiffs’ arguments underlying their claim of procedural unconscionability fall flat. As previously noted, the purpose of the PLRA is to enable the courts to “confidently state that, even in the consumer context, ‘[a] party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.'” Kernahan v. Home Warranty Adm’r of Florida, Inc., 236 N.J. 301, 321, 199 A.3d 766 (2019). Among other things, Plaintiffs argue that (i) Martin’s “lack of education and sophistication rendered him unable” to enter into the release; (ii) the Release was not negotiated personally by Martin; and (iii) he lacked representation by counsel.[19] Setting aside the impracticalities that would result if the Court accepted Plaintiffs’ arguments, Plaintiffs’ primary authority in support of these arguments, O’Brien v. Star Gas Propane, L.P., 2006 WL 2008716 (App. Div. 2006), concerning whether a union-represented employee knowingly released certain discrimination claims against his employer, does not translate to the consumer contract context.[20]

However, Plaintiffs contend that Martin had a limited opportunity to review and consider the Release prior to assenting to its terms. When asked at his deposition why he failed to read the Release, Martin testified that “there was about twenty people in line behind me and we were n a press for time to get the events started.” (Martin Dep. Tr. 44:6-10.) And, when asked whether he saw any other individual sign the Release, Martin testified that “it was very, very rushed . . . [s]o there was no time, they was like — they were like ‘we need to get to the shooting location’ . . . .” (Martin Dep. Tr. 172:14-173:2.) At this juncture, even if the Release was enforceable as to Plaintiffs’ claims, there remains a question of material fact regarding whether Martin had a meaningful opportunity to review the agreement. See Delta Funding Corp., 189 N.J. at 40 (acknowledging that plaintiff alleged facts which suggested “a high level of procedural unconscionability” where signatory was “rushed” into signing the papers); Miller v. Miller, 160 N.J. 408, 419 (1999) (considering whether plaintiff was “rushed into signing” an agreement in determining that the agreement was unconscionable).

III. Conclusion

For the reasons set forth above, Plaintiffs have demonstrated that they are entitled to summary judgment regarding Defendants’ affirmative defenses of release and waiver, pursuant to Federal Rule of Civil Procedure 56(a). Defendants’ motions for summary judgment regarding those same affirmative defenses are denied. An appropriate Order will issue.

———

Notes:

[1] Unless otherwise specified, references to “Martin” in this Opinion concern David Martin.

[2] As relevant to the instant motions, and as discussed further infra at Section II.A, the following papers and their attendant exhibits establish the evidentiary record:

• In connection with Plaintiffs’ Motion (“Pls.’ Mot.”) (ECF No. 124), Plaintiffs submitted a Rule 56.1 Statement (“Pls.’ 56.1 Statement”) (ECF No. 139), the HFC Defendants submitted a Response to Plaintiffs’ Rule 56.1 Statement (“HFC’s 56.1 Response In Opp.”) (ECF No. 143), and the G&H Defendants submitted a Response to Plaintiffs’ Rule 56.1 Statement (“G&H’s 56.1 Response In Opp.”) (ECF No. 144).

• In connection with the HFC Defendants’ Motion for Summary Judgment (“HFC Mot.”) (ECF No. 122), the HFC Defendants submitted a Rule 56.1 Statement (“HFC’s 56.1 Statement”) (ECF No. 122-2).

• In connection with the G&H Defendants’ Motion for Summary Judgment (“G&H Mot.”) (ECF No. 123), the G&H Defendants submitted a Rule 56.1 Statement (“G&H’s 56.1 Statement”) (ECF No. 123-2).

[3] These include, among other things, that a signatory certify that he or she (1) has “never been convicted of a crime, ” (2) has “not consumed alcohol in the last 12 hours and [is] not under the influence of any prescription or other drug or substance that would affect my ability to safely handle a firearm, ” and (3) “know[s] of no reason(s) why [their] possession of a firearm would not be in the interest of public health, safety, or welfare.”

[4] In connection with the instant motions, Martin submits an affidavit attesting that he did in fact read the release. (See Affidavit of David Martin (ECF No. 129-4) ¶¶ 16-20). For the reasons discussed, infra at II.A.2, the affidavit and all attendant facts will be set aside as a sham affidavit.

[5] On July 1, 2021, Magistrate Judge Waldor adopted a briefing schedule proposed by the Parties and ordered that the Parties file “any motions regarding the Release and Hold Harmless Agreement” pursuant to that schedule. (ECF No. 124.)

[6] Indeed, the Rules do not contemplate that a nonmovant will submit a statement of “undisputed” material facts. Instead, the nonmovant may furnish a “supplemental statement of disputed material facts, ” to which the movant shall reply. L. R. 56.1(a)

[7] As just one example, Mr. Engle attests: “Certainly we know from Mr. Martin’s affidavit that he did not read Section 1 and instead skimmed over it precisely because it was ‘too small and dense.’ Whether this was a reasonable thing to do, given the fact that it was in 9-point font, is a jury question.” (ECF No. 129 ¶ 10.) Such a statement is far from an “undisputed fact, ” nor does it follow the plain requirements of Local Rule 56.1(a).

[8] While the Martin Affidavit was submitted on multiple occasions in connection with the various motions, each submission is identical and the Court will refer to it as a single document.

[9] Counsel for the HFC Defendants assert that Plaintiffs should be sanctioned for submitting this sham affidavit. (HFC Opp. at 7.) To the extent that this request is more than mere bluster, it must be made as its own motion and pursuant to Rule 11 of the Federal Rules of Civil Procedure.

[10] As the Court has concluded exclusion is proper, there is no need to reach Defendants’ substantive objections to the Osborn Report. In any event, for reasons discussed infra, the Court’s consideration of the Report’s contents would not change the conclusion that the Release did not violate the PLRA.

[11] Relying on the deposition testimony of Laurel Auriemma, G&H’s Compliance Officer, Plaintiffs contend that most of the text in Section 1 of the Release is 9-point Times New Roman, the sole exception being the statement “I HAVE CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTAND THE CONTENTS, ” found at the bottom of Section 1 of the Release, which Plaintiffs claim is in 8-point Times New Roman. (Pls.’ 56.1 Statement ¶¶ 12, 13, 15, 16.) Defendants object to these statements as mischaracterizations of Ms. Auriemma’s testimony, and instead (correctly) claim that Ms. Auriemma’s testimony concerned the font size of a Microsoft Word version of the Release she had in her possession- rather than the signed Release. (HFC’s 56.1 Response In Opp ¶¶ 12, 13, 15, 16; G&H 56.1 Response In Opp ¶¶ 12, 13, 15, 16.) While the record does not establish an undisputed determination of the relevant language’s font size, even when the Court credits Plaintiffs’ accounting of the facts, their challenge to the language under the PLRA fails for the reasons that follow.

[12] Plaintiffs also contend that “Mr. Martin’s affidavit alone creates several N.J.S.A. 56:12(1-6) issues of fact.” (Pls.’ Mot at 14.) For reasons previously discussed, the Court will not credit the Martin Affidavit. See supra at II.A.2.

[13] Plaintiffs’ reliance on Kernahan and Rockel v. Cherry Hill Dodge, 368 N.J.Super. 577 (App. Div. 2004), is misplaced. To the extent the court in Kernahan considered the 6.5-point font size of the relevant language in the 5-page contract, it was one of several factors-also including a “confusing sentence order” and “misleading caption”-weighing in favor of finding it unenforceable. 236 N.J. at 326. Furthermore, the Kernahan decision focused predominantly on the heightened requirements underlying the enforcement of arbitration provisions, an issue not present here. Id. at 301-326 (citing Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014)).

Meanwhile, while the court in Rockel acknowledged that “[t]he size of the print and the location of the arbitration provision in a contract has great relevance to any determination to compel arbitration, ” its decision relied largely on the presence of two conflicting arbitration provisions. 368 N.J.Super. at 585. Indeed, the court in Rockel did not consider any challenge to the language under the PLRA.

[14] The third factor is inapplicable here because Defendants are neither public utilities nor common carriers.

[15] To underscore this point, John Ursin, G&H’s attorney and a principal drafter of the Release, during his deposition was asked whether the language was meant to “include every possible accident on the activity.” (Ursin Dep. Tr. 27:15-23.) While he declared that this would be an “overstatement, ” he only offered the hypothetical the Release was not intended to disclaim liability “if . . . there was a plane crash on the property.” (Id.) To limit Defendants’ liabilities under the exculpatory to acts of god would “eviscerate” the duty of care they have to their patrons. Cf. Walters, 437 N.J.Super. at 118-19.

[16] Plaintiffs argue unconvincingly that, because the Release does not contain a severability clause, the Release must be voided as a whole. Here, striking the unenforceable portions of the Release still “leaves behind a clear residue that is manifestly consistent with the ‘central purpose’ of the contracting parties, and that is capable of enforcement.” Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 33 (1992).

[17] Further to their proposed analogy between transportation during sporting clay shooting to the rental of golf carts in connection with a golf tournament, Defendants offer Post v. Belmont Country Club, Inc., 60 Mass.App.Ct. 645 (2004) as support for their argument that injuries during transportation should be covered within the Release. However, in Post, the relevant exculpatory clause in the golf membership handbook expressly included transportation on the golf court, id. at 646, and applied Massachusetts’ more permissive rules with respect to exculpatory agreements, id. at 651 (refusing to require “strict construction” of the relevant exculpatory clause when asked to apply other states’ rules of construction).

[18] Plaintiffs also argue, unpersuasively, that the Release violates Defendants’ statutory duties imposed upon them under New Jersey Code of Criminal Justice, Title 2C Section 2C:58-3.1. Under 2C:58-3.1, a legal owner of a handgun, rifle or shotgun may temporarily transfer the firearm to a person who is 18 years of age or older, if the transfer is made upon a firing range “for the sole purpose of target practice, trap or skeet shooting, or competition upon that firing range.” Upon the transfer, “[t]he firearm shall be handled and used by the person to whom it is temporarily transferred only in the actual presence or under the direct supervision of the legal owner of the firearm.” Id. Plaintiffs make no claim that any injury was the result of a failure to supervise him upon the transfer of a firearm, and Martin has acknowledged that he was not in possession of a firearm during the wagon ride at issue. (Martin Dep. Tr. 51 5-12.)

[19] The Release, which Defendants presented on a take-it-or-leave-it basis, in a standardized printed form, and without opportunity for the Martin to negotiate, is a contract of adhesion. Gamble v. Connolly, 399 N.J.Super. 130, 142 (2007) (A contract of adhesion means “‘a contract where one party must accept or reject the contract.'”). However, “‘the determination that a contract is one of adhesion is the beginning, not the end, of the inquiry into whether a contract…should be deemed unenforceable based on policy considerations.'” Id. “When making the determination that a contract of adhesion is unconscionable and unenforceable, [the court] consider[s], using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest.” Stelluti, 203 N.J. at 301 (citing Delta Funding, 189 NJ. at 39-40).

[20] Plaintiffs also argue that the “language of the release was technical and cumbersome” and “[i]ts sentences were overly long and difficult to understand.” (Pls.’ Opp, to HFC Mot. at 24; Pls.’ Opp to G&H Mot. at 27.) These arguments fail for reasons already discussed. See supra at II.B.

———


Sometimes you can go too far and in this case Mountain Creek Ski Resort went stupid far.

In attempting to recover their defense costs and attorney’s fees based on a rental agreement, they court found the agreement was a contact of adhesion.

Vladichak v. Mountain Creek Ski Resort, Inc. (N.J. Super. App. Div. 2022)

State: New Jersey

Plaintiff: Andrea Vladichak

Defendant: Mountain Creek Ski Resort, Inc., and Michael Lavin

Defendant Lavin Claims: indemnity clause is ambiguous

Defendant Defenses: Indemnity Clause is valid

Holding: For the defendant Lavin & against Mountain Creek Ski Resort

Year: 2022

Summary

The ski area one the lawsuit when brought into a skier v. skier collision lawsuit. Afterwards, they attempted to sue the plaintiff in the skier v. skier case for their costs in defending based on the “indemnification” clause in the rental agreement he signed when the plaintiff rented ski equipment.

The court tore through the release holding for the original plaintiff. The court’s interpretation will not affect this case; however, the interpretation will have a negative bearing on any future case.

Facts

On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.

Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.

The co-defendant Lavin rented skis from the ski area Mountain Creek. The rental agreement included a release and an indemnification clause. Like 99% of the indemnification clauses in releases it was written badly, but Mountain Creek tried to sue Lavin for their costs in defending the lawsuit by the original plaintiff and lost!

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

Indemnification agreements are not understood by 95% of the outdoor industry. 99% of them when attempted to be used by the courts have been thrown out, but you still find the language in releases.

Get rid of that language, it does not work and only makes judges mad!

In this case, the indemnification language was in the rental agreement signed by the co-defendant when he rented skis. The language was the general “I don’t know what this means, but I’ll stick it in a release” language.

After the ski area had won its lawsuit, and the co-defendant had settled with the plaintiff, the ski area sued the co-defendant to recover their attorney fees and costs they spent in defending the lawsuit.

The court, in this case, started by looking at New Jersey state law covering indemnification agreements. Because they are such of a particular type of contracts, each state has evolved its own set of laws on how an indemnification agreement is going to be interpreted. New Jersey:

… indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.

Meaning the courts interpreted the agreement strictly. “We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.”

The court then looked at the indemnification language in the ski equipment rental agreement and said the language fails.

We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence.

The court then proceeded to destroy the entire idea that an indemnity agreement in this case would ever work.

An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence.

Simply stated the court found “The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence.”

The ski area then argued the New Jersey Skier Safety Act supported the indemnification. The court struck this down with one sentence.

This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators”

The court went into the entire issue of the release that contained the indemnification provision and found the release was a contract of adhesion.

As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.”

The court reviewed under New Jersey law what a contract of adhesion was and how it was determined to be one.

When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. We consider these factors using a “sliding scale analysis.”

The court then applied the test for an adhesion contract to the rental agreement.

applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.

The court found the rental agreement was a contract of adhesion. However, in this situation it was not void on its face.

However, that creates a ruling that all other courts in New Jersey must rely upon in reviewing the rental agreement of Mountain Creek Ski Resort. By pushing the issue, they created a lower step for the plaintiff’s bar to overcome in the future.

So Now What?

If you have indemnification language in your release, and it was not written by me, have an attorney remove it. It is a waste of space on the paper and only can be used to make judges mad.

Indemnification agreements must be written in a special way to cover very specific circumstances that must be outlined in the agreement.

If you want to understand an indemnification agreement, read your automobile insurance policy. (Think about shrinking that to fit into your release…..)

That does not mean indemnification agreements in releases are all bad. They can be used, IF WRITTEN PROPERLY, to indemnify the outfitter for their actions if backed up by other documents or contracts. Meaning if you live in a state that charges for rescue, you can require your guests to indemnify you for any rescue costs you may incur on their behalf.

What do you think? Leave a comment.

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Vladichak v. Mountain Creek Ski Resort, Inc. (N.J. Super. App. Div. 2022)

ANDREA VLADICHAK, Plaintiff-Respondent,
v.
MOUNTAIN CREEK SKI RESORT, INC., Defendant-Appellant,

and MICHAEL LAVIN, Defendant-Respondent.

No. A-1367-20

Superior Court of New Jersey, Appellate Division

April 13, 2022

This opinion shall not “constitute precedent or be binding upon any court .” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued April 4, 2022

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0590-18.

Samuel J. McNulty argued the cause for appellant (Hueston McNulty, PC, attorneys; Samuel J. McNulty, of counsel and on the briefs; Edward J. Turro, on the briefs).

Matthew E. Kennedy argued the cause for respondent Michael Lavin (Leary Bride Mergner & Bongiovanni, PA, attorneys; Matthew E. Kennedy, of counsel and on the brief).

Before Judges Fasciale and Sumners.

PER CURIAM

Defendant Snow Creek, LLC d/b/a Mountain Creek Resort, Inc. (Mountain Creek) appeals from a November 9, 2020 order denying its motion for summary judgment and granting summary judgment to defendant Michael Lavin (Lavin) dismissing Mountain Creek’s cross-claims for defense costs and contractual indemnification. Judge David J. Weaver (motion judge) concluded in a thorough opinion that the contractual language was ambiguous and therefore Mountain Creek was not entitled to indemnification from Lavin or defense costs incurred to defend plaintiff’s allegations that Mountain Creek itself was negligent. We affirm.

On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.

Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.

Plaintiff’s counsel served a report from plaintiff’s liability expert, who concluded that Lavin violated the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -12, and the Skier’s Responsibility Code by failing to control his speed and course and by failing to yield to the skiers ahead of him. The expert opined that Lavin’s reckless conduct caused the accident. On March 27, 2020, Judge Stephan C. Hansbury entered an order granting Mountain Creek’s motion for summary judgment dismissing plaintiff’s claims that Mountain Creek was negligent. Lavin and plaintiff settled and filed a stipulation of dismissal with prejudice dated May 29, 2020.

After plaintiff’s settlement with Lavin, Mountain Creek filed its motion seeking reimbursement from Lavin for defending plaintiff’s allegations and indemnification from Lavin.[1] Lavin filed a cross-motion for summary judgment on September 1. That led to the order under review.

The judge concluded that, as a matter of law, the indemnification provisions were ambiguous and thus unenforceable to compel indemnification in favor of Mountain Creek for claims of its own negligence. The motion judge denied Lavin’s cross-motion for summary judgment in part and granted it in part. The motion judge requested the parties submit the detail and extent of defense costs incurred by Mountain Creek for costs incurred for which liability was only vicarious.

Mountain Creek’s attorneys stipulated that there were no fees or costs incurred from defending vicarious liability claims. On December 14, 2020, Judge Robert J. Brennan entered a consent order resolving all remaining issues as to all parties.

Mountain Creek raises the following arguments on appeal:

POINT I

STANDARD OF REVIEW-DE NOVO[.]

POINT II

THE [MOTION JUDGE] CORRECTLY RULED THAT THE TWO AGREEMENTS WERE NOT CONTRACTS OF ADHESION NOR WERE THEY CONTRARY TO PUBLIC POLICY.

POINT III

THE [MOTION JUDGE] ERRED IN FINDING THAT THE LANGUAGE IN THE AGREEMENTS SIGNED BY . . . LAVIN IS AMBIGUOUS AND INSUFFICIENT TO COMPEL . . . LAVIN TO INDEMNIFY AND DEFEND MOUNTAIN CREEK FOR CLAIMS OF ITS OWN NEGLIGENCE.

A. Special Status Of A Ski Operator.

B. The Two Agreements Were Unambiguous And Should Be Enforced.[2]

Mountain Creek raises the following points in reply, which we have renumbered:

POINT IV

. . . LAVIN’S REQUEST THAT THE APPELLATE DIVISION REVERSE THE [MOTION JUDGE]’S JUDGMENT THAT THE CONTRACTS WERE NOT UNCONSCIONABLE SHOULD BE REJECTED AS NO CROSS-APPEAL WAS FILED.

POINT V

THE AGREEMENTS IN QUESTION ARE ENFORCEABLE AND NOT UNCONSCIONABLE CONTRACTS OF ADHESION.

POINT VI

THE INDEMNIFICATION LANGUAGE IS SUFFICIENT AND EXPRESSLY PROVIDES FOR INDEMNIFICATION FOR CLAIMS ASSERTING MOUNTAIN CREEK’S OWN NEGLIGENCE.

We review the motion judge’s grant of a motion for summary judgment de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We apply the same standard as the motion judge and consider “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).

I.

Mountain Creek contends the motion judge erred in ruling the indemnification provisions in the Release and Rental Agreements were ambiguous and unenforceable to compel Lavin to indemnify Mountain Creek for Mountain Creek’s own negligence. Mountain Creek also contends that it should be permitted to obtain indemnification from Lavin based on its special status as a ski area operator under the Ski Statute.

The judge’s role “in construing a contractual indemnity provision is the same as in construing any other part of a contract-it is to determine the intent of the parties.” Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Generally, courts give contractual provisions “their plain and ordinary meaning.” Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 171 N.J. 378, 396 (2002)). “However, indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.'” Ibid. (quoting Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)).

We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.” Azurak v. Corp. Prop. Invs., 347 N.J.Super. 516, 523 (App. Div. 2002). Azurak involved a contract between a janitorial company (PBS) and a shopping mall owner (the Mall) that contained the following provision:

Contractor [PBS] shall indemnify, defend and hold harmless each Indemnitee [the Mall] from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorneys’ fees) that such Indemnitee may incur relating to, arising out of or existing by reason of (i) Contractor’s performance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contractor or its subcontractors, servants or employees) or (ii) Contractor’s breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.

[Azurak v. Corp. Prop. Invs., 175 N.J. 110, 111 (2003) (alterations in original).]

The plaintiff sued the Mall and PBS for injuries she sustained when she slipped on the Mall’s floor. Ibid. The trial judge granted the Mall’s summary judgment motion on the issue of indemnification based on the contract provision. Ibid. At trial, the jury determined “that plaintiff was 30% negligent; the Mall, 30%; and PBS, 40%.” Ibid. This court disagreed with the trial judge, finding that the indemnification provision did not encompass the Mall’s negligence because the provision’s language was neither explicit nor unequivocal as to claims of the Mall’s own negligence. Id. at 111-12. Our Court affirmed and held that “in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee.” Id. at 112-13.

Mountain Creek’s Release Agreement contained a provision that states:

INDEMNIFICATION. To the fullest extent permitted by law, I agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees asserted against Mountain Creek by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities WHETHER OR NOT MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

One provision of the Rental Agreement states:

To the fullest extent permitted by law, I also agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees for personal injury, death or property damage against it by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities or the use of this equipment whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence. See Nester v. O’Donnell, 301 N.J.Super. 198, 210 (App. Div. 1997) (noting that a contract is ambiguous if it is “susceptible to at least two reasonable alternative interpretations” (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F.Supp. 275, 283 (D.N.J. 1992), aff’d, 993 F.2d 877 (3d Cir. 1993))).

An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence. That is the case here, as plaintiff’s complaint alleged Mountain Creek was separately negligent for failing to provide adequate instructions to skiers and a safe ski environment. A better-and likely enforceable-provision would explicitly state that the indemnitor indemnifies Mountain Creek for claims arising out of indemnitor’s conduct and for claims of Mountain Creek’s independent negligence.

The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence. Thus, the provisions are ambiguous and must be strictly construed against Mountain Creek. The same reasoning and standards apply with equal force to Mountain Creek’s defense costs. The provisions’ ambiguity precludes their enforcement against Lavin for recovery of the costs incurred by Mountain Creek for defending its own negligence claims.

We also conclude Mountain Creek’s argument that the Ski Statute supports enforcement of the indemnification provisions is without merit. While the Ski Act may emphasize the inherent risk that skiers assume when skiing, the Act provides separate duties to the ski operator, which include establishing and posting a system for identifying slopes and their difficulty, ensuring the availability of information to skiers, and removing hazards as soon as practicable. N.J.S.A. 5:13-3(a). The allegations in plaintiff’s complaint, which include failing to provide adequate signage and failing to instruct skiers properly, do not fall under the risks that “are essentially impractical or impossible for the ski area operator to eliminate” defined in the statute. N.J.S.A. 5:13-1(b). In fact, plaintiff’s complaint addressed the responsibilities of a ski area operator as prescribed by the Act. Requiring indemnification in favor of a ski resort for claims of its own independent negligence does not further the Ski Act’s purpose of allocating the inherent risk of skiing between the skier and ski resort. Moreover, the public policy of the Ski Act has no bearing on our interpretation of the indemnity provisions and our conclusion that the provisions are ambiguous.

II.

Lavin argues, on an alternative basis, that the Rental and Release Agreements are unconscionable contracts of adhesion. Lavin was not required to file a Notice of Cross-Appeal to preserve this argument for appeal because “appeals are taken from judgments, not opinions, and, without having filed a cross-appeal, a respondent can argue any point on the appeal to sustain the trial [judge’s] judgment.” Chimes v. Oritani Motor Hotel, Inc., 195 N.J.Super. 435, 443 (App. Div. 1984). Even if Lavin were required to file a cross-appeal, we will address the merits of his argument.

As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992). An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017) (quoting Rudbart, 127 N.J. at 355). “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.” Ibid.

We agree with the motion judge that “the Agreements at issue evidence characteristics of contracts of adhesion.” The Release and Rental Agreements were standardized form contracts that fit our Court’s definition as “take-it-or-leave-it” adhesion contracts. See ibid. All potential skiers at Mountain Creek’s resort are obligated to sign the Release Agreement, and there is little to no negotiating done before the agreements’ execution. However, an agreement found to be an adhesion contract may nevertheless be enforced if it is not unconscionable. See ibid.

When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) (quoting Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 367 (2016)). Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” Rudbart, 127 N.J. at 356. The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. See Rodriguez, 225 N.J. at 367. We consider these factors using a “sliding scale analysis.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).

The motion judge correctly relied on Stelluti in determining the agreements are not procedurally unconscionable. In Stelluti, the plaintiff was injured in a spinning class at a private fitness center and argued that the pre-injury waiver of liability she signed was unenforceable on unconscionability grounds. Id. at 291, 300. The Court found that although the pre-printed form was an adhesion contract, it was not procedurally unconscionable. Id. at 301-02. The Court reasoned the plaintiff was not in a position of unequal bargaining power, despite being a layperson and not being fully informed of the legal effect of an adhesion contract, when she had the ability to take “her business to another fitness club,” to find a form of exercise different than joining a private gym, or to contemplate the agreement for some time before joining the gym and using its equipment. Id. at 302.

Under the Court’s reasoning in Stelluti and applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.

As for the remaining factor-the impact on public interest-Mountain Creek points to the “strong public policy of protecting ski operators and allocating the risks and costs of inherently dangerous recreational activities” under the Ski Statute. The Act’s purpose is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery.

[N.J.S.A. 5:13-1(b).]

We agree that the Agreements are not substantively unconscionable. The agreements do not contain terms that are so “harsh” or “one-sided” to render them unconscionable and unenforceable. See Muhammad v. Cnty. Bank of
Rehoboth Beach, Del., 189 N.J. 1, 15 (2006). Construing the indemnity provision against Mountain Creek due to its ambiguity, the provision requires that Lavin indemnify and defend Mountain Creek for claims arising out of Lavin’s conduct while using Mountain Creek’s equipment and facilities, even when Mountain Creek is partially at fault. This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators” and that our Legislature has enacted statutes to address the allocation of risk in those circumstances. 203 N.J. at 308. It would not be against public policy to require indemnification of Mountain Creek by Lavin for claims of vicarious liability due to Lavin’s reckless conduct; however, Mountain Creek stipulated that it did not incur any costs in defending claims of vicarious liability.

Affirmed.

———

Notes:

[1] Mountain Creek did not contribute towards plaintiff’s settlement with Lavin.

[2] To comport with our style conventions, we altered the capitalization of Mountain Creek’s Points A and B but omitted the alterations for readability.

———


I can’t figure out why this Equine Liability case is winning, except it is in Utah.

Utah historical seems to write big checks to injured kids, seems to be the case here.

Nasserziayee v. Ruggles (D. Utah 2022)

State: Utah, United States District Court, D. Utah

Plaintiff: Farooq Nasserziayee and Lenore Supnet, and daughter, M.N., a minor

Defendant: Jack Ruggles and Jane Doe Ruggles, Zion Canyon Trail Rides at Jacob’s Ranch, LLC, Joshua Ruggles; Clay Doe

Plaintiff Claims: negligence, gross negligence, infliction of emotional distress, and negligent infliction of emotional distress

Defendant Defenses: Assumption of the Risk, Express Assumption of the Risk, Release

Holding: Partial win for the defendants but going to trial

Year: 2022

Summary

The plaintiff’s mother, father and daughter went on a trail ride. The daughter fell off the horse and was injured. Now she wants money.

Facts

The facts of the case are interspaced in the opinion, so they are pulled here in an attempt to explain what happened that gave rise to this litigation.

On March 4, 2020, Nasserziayee and Supnet filed a complaint alleging their minor daughter, M.N., was badly injured in a March 21, 2016, fall off of a horse at Jacob’s Ranch.

First, Plaintiffs submitted evidence that helmets were not offered. Second, Plaintiffs submitted evidence that Clay Doe encouraged the horses to go faster at one point, even though the horses carried inexperienced riders.

The plaintiff’s signed up to go for a horseback riding trip. The father signed a release. It is disputed whether the plaintiffs were offered a helmet prior to the ride. It is disputed that the trip leader encouraged everyone to hurry up, about the same time, the daughter fell off her horse.

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

The first issue the court reviewed was whether the defendant could be grossly negligent if the defendant did not offer the plaintiff’s helmets to wear before the ride.

“In Utah, gross negligence is ‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'”[36]Under Utah law, resolution of a gross negligence claim is typically within the province of the factfinder. Summary judgment is only appropriate on a gross negligence claim when “reasonable minds could reach but one conclusion” as to whether a defendant observed even slight care.

Both parties submitted affidavits from themselves and people on the ride. The plaintiff’s affidavits stated the defendant did not offer the riders any helmets. The defendants’ affidavits stated that helmets were offered. As such the court found there was a factual issue that could not be resolved. However, without any analysis, the court stated that failure to offer a helmet could be found to be gross negligence.

What was very interesting was how the court looked at the statement in the release that stated the plaintiffs were offered a helmet.

Defendants also suggest that because Plaintiffs signed the Release, which contains a clause agreeing that the signer had been offered a helmet, no factfinder could conclude that Plaintiffs were not offered helmets. While that clause may be evidence that Plaintiffs were offered helmets and may be relevant in evaluating an assumption of risk defense, it is not dispositive of helmets being actually provided. Resolution of such a question is within the province of the factfinder.

Rarely, if ever have a contract provision, which makes a statement been ruled as not controlling. This does not bold well for releases in Utah to some extent.

The next issue was assumption of the risk both as an express assumption of the risk agreement signed by the father, the risk assumed by statute with the Utah’s Equine and Livestock Activities Act, and the risk of falling you assume when you get on a horse. However, whether a plaintiff assumed the risk is usually a decision for the fact finder or jury so although a great defense is rarely wins at the motion for summary judgment level.

Utah recognizes three types of assumption of the risk.

There are three types of assumption of risk in Utah: primary express, primary implied, and secondary.

• Primary express assumption of risk “involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another.”

• Primary implied assumption of risk occurs in inherently risky activities, where the defendant as a matter of law owes no duty of care to a plaintiff for certain risks because no amount of care can negate those risks.

• Secondary assumption of risk occurs when a person voluntarily but “unreasonabl[y] encounter[s] . . . a known and appreciated risk.” Secondary assumption of risk is treated akin to contributory negligence, and is “no longer recognized in Utah as a total bar to recovery.”

The court then proceeded to eliminate assumption of the risk as a defense at this level of the trial and to a certain extent, back at the trial level.

Primary express assumption of risk does not bar Plaintiffs’ claims. Primary express assumption of risk allows a party to contract with another that they will not sue in case of injury or loss. This type of assumption of risk is more closely related to contract law, and typically takes the form of preinjury liability releases, such as the Release in this case

The Release shows that Plaintiffs only agreed to assume those “risks, conditions, & dangers [which] are inherent” to horseback riding. As discussed below, the negligence Defendants are accused of is not the type “inherent” to horseback riding. Accordingly, primary express assumption of risk does not bar Plaintiffs’ claims on this record.

I always though falling off a horse was an inherent risk of horseback riding. However, this court does not see the case in that way. Assumption of the risk as expressed in the release is not a bar to the claims because “how” the child fell off the horse is the issue according to the court.

The court even stretched further to deny assumption of the risk as defined by primary implied assumption of the risk.

Primary implied assumption of risk does not bar Plaintiffs’ claims. Primary implied assumption of risk only applies to “inherently risky” activities. In order for primary implied assumption of risk to bar a plaintiff’s claims, the injury must have resulted from a risk “inherent” to an activity, and be one that a defendant cannot eliminate through imposition of reasonable care. Utah’s Equine and Livestock Activities Act (the “Act”) has essentially codified this doctrine as it relates to horse-related injuries. Both the Act and the doctrine of primary implied assumption of risk distinguish between injuries resulting from the inherent risks of the relevant activity and injuries resulting from negligent behavior. Inherent risks of horseback riding may include a horse’s propensity to bolt when startled or other unpredictable behavior. It may also refer to a rider’s failure to control the animal or not acting within one’s ability. If an injury “was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not . . . an inherent risk” of an inherently risky activity

The court found that secondary assumption of the risk is not a bar to the claims also.

Secondary assumption of risk does not bar Plaintiffs’ claims. Secondary assumption of risk, “the unreasonable encountering of a known and appreciated risk, ” is more properly viewed as an “aspect of contributory negligence.” Contributory negligence is not a complete bar to recovery, but rather involves the apportionment of fault. Once the combined negligence of plaintiff and defendant has been established, evaluation of a comparative or contributory negligence defense is within the province of the factfinder.

The court did rule in favor of the defendant on the intentional infliction of emotional distress claim finding that under Utah’s law the actions of the defendant in causing this injury must almost be intentional.

Rather, Utah courts have described the type of conduct required to sustain a claim for IIED as “extraordinary vile conduct, conduct that is atrocious, and utterly intolerable in a civilized society.” The Tenth Circuit has similarly described Utah law as setting “high standards” to establish a claim for IIED.

So Now What?

This case has several issues that raise concerns about the law in Utah now an in the future.

The first is discounting the requirements or agreements in a contract, in this case the release. When you sign a contract, you agree to the terms of the contract. The release stated the plaintiff was offered a helmet. The court did not care.

The next issue is failing to offer a helmet to someone is possibly gross negligence. This is not that far of a stretch, but the first time I have seen it in any outdoor recreation case. However, failure to provide safety equipment that usually accompanies any recreational activity is an easy way to lose a lawsuit.

But these two issues create an additional problem. How do you prove you offered a helmet or other safety equipment to someone. Normally, you would put it in the release. Here that does not work. Videotape the helmet area? Have a separate document saying you agree not to wear a helmet?

Finally, you can see where a case is headed or what type of attitude a court has about a case when all three forms of assumption of the risk recognized under Utah’s law are found not to apply in this case. The court was right that the language of the Utah Equine and Livestock Activities Act only covers the inherent risks of horseback riding and therefore, provides no real protection.

I’ve said it for years, the equine protection laws enacted in all 50 states are 100% effective. No horse has been sued since those laws have been in place. However, their effectiveness in stopping claims again, the horse owners or stables are worthless. In fact, lawsuits and judgements over injuries caused by horses have increased since the passage of the equine liability laws.

When you are lifted up or climb up onto an animal whose back is 5′ to 6′ above the ground, if you fall off that animal don’t you think you can suffer an injury? This court does not think so.

What do you think? Leave a comment.

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Nasserziayee v. Ruggles (D. Utah 2022)

Nasserziayee v. Ruggles (D. Utah 2022)

FAROOQ NASSERZIAYEE AND LENORE SUPNET, husband and wife, on their own behalf, and on behalf of their daughter, M.N., a minor, Plaintiffs,
v.
JACK RUGGLES and JANE DOE RUGGLES, husband and wife; ZION CANYON TRAIL RIDES AT JACOB’S RANCH, LLC, a Utah limited liability company; JOSHUA RUGGLES; CLAY DOE, Defendants.

No. 4:19-cv-00022-DN-PK

United States District Court, D. Utah

January 7, 2022

Paul Kohler, Magistrate Judge

MEMORANDUM DECISION AND ORDER

DENYING MOTION TO STRIKE AND

GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

David Nuffer United States District Judge

This case arises out of an alleged accident at Zion Canyon Trail Rides at Jacob’s Ranch (“Jacob’s Ranch”), a recreational horseback riding facility. Plaintiffs Farooq Nasserziayee (“Nasserziayee”) and Lenore Supnet (“Supnet”) filed a complaint on behalf of themselves and their daughter, M.N., alleging that M.N. was injured during a horse-riding accident due to the actions of Defendants.

Defendants Zion Canyon Trail Rides at Jacob’s Ranch, Jack Ruggles, and Jane Doe Ruggles (collectively “Moving Defendants”) moved for summary judgment. They allege that summary judgment is appropriate because (1); no reasonable factfinder could find gross negligence; (2) Plaintiffs assumed the risk of injury; (3) no reasonable fact finder could find negligent infliction of emotional distress; and (4) no reasonable fact finder could find intentional infliction of emotional distress. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

Contents

Background ……………………………………………………………………………………………………………………. 2

A Prior Ruling Eliminated Some Claims …………………………………………………………………. 3

This Motion for Summary Judgment ………………………………………………………………………. 3

Undisputed Material Facts ……………………………………………………………………………………………….. 4

Discussion ……………………………………………………………………………………………………………………… 6

Defendant’s Motion to Strike is Denied ………………………………………………………………….. 6

Defendants’ Motion for Summary Judgment Will be Granted in Part and Denied in Part 8 A Reasonable Factfinder Could Conclude Defendants Were Grossly Negligent … 9

Assumption of Risk Does Not Bar Plaintiffs’ Negligence Claims ………………….. 13

The Prior Ruling Granted Summary Judgment on the Negligent Infliction of Emotional

Distress Claim …………………………………………………………………………………………. 16

Summary Judgment Will be Granted on the Intentional Infliction of Emotional Distress

Claim ……………………………………………………………………………………………………… 17

Conclusion and Order ……………………………………………………………………………………………………. 18

BACKGROUND

On March 4, 2020, Nasserziayee and Supnet filed a complaint alleging their minor daughter, M.N., was badly injured in a March 21, 2016, fall off of a horse at Jacob’s Ranch.[1] The complaint asserted claims for negligence, gross negligence, infliction of emotional distress, and negligent infliction of emotional distress against Jacob’s Ranch, Jack Ruggles, and Jane Doe Ruggles.[2] In April 2020, Plaintiffs filed an amended complaint, which added identical claims against Joshua Ruggles and Clay Doe, and alleged, “[b]ased on the statements of Defendant Jack (“Pappy”) Ruggles and Defendant Jacobs Ranch, ” that Joshua Ruggles and Clay Doe were independent contractors.[3]

A Prior Ruling Eliminated Some Claims

In October 2020, Defendants filed a Motion to Dismiss and for Summary Judgment[4], which was granted in part and denied in part (“Prior Ruling”).[5] The Prior Ruling granted summary judgment for Defendants on the claims for ordinary negligence and negligent infliction of emotional distress, based on the Release Plaintiffs signed prior to the horseback ride.[6]However, the Prior Ruling denied summary judgment on the claims for gross negligence and intentional infliction of emotional distress because those claims were not barred by the Release.[7]The Prior Ruling also found there was sufficient evidence to support a claim for gross negligence, because there were disputed facts not amendable to resolution based on the record at the time. Specifically, the Prior Ruling noted that Plaintiffs had submitted evidence that helmets were not made available to the group, and the horses were at one point encouraged to go faster, even though they were carrying inexperienced riders. The Prior Ruling concluded that this evidence, if believed by a jury, could support a finding of gross negligence against Jack Ruggles, Jane Doe Ruggles, and Jacob’s Ranch.[8]

This Motion for Summary Judgment

On September 16, 2021, Moving Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC filed this motion for summary judgment on all remaining issues (“Motion”), which is resolved in this ruling.[9] Plaintiffs filed a response on October 14 (“Response”), [10] and a supplemental response on October 28, 2021 (“Supplemental Response”).[11] Moving Defendants filed a reply on October 28, 2021(“Reply’).[12]

On November 3, 2021, Moving Defendants moved to strike Plaintiffs’ Supplemental Response, arguing it was untimely filed.[13] Plaintiffs filed an opposition to the Motion to Strike on November 15, 2021.[14] On November 17, 2021, a docket text order was entered construing the opposition as a motion under Federal Rules of Civil Procedure 6(b) and directing Defendants to file a further reply.[15] Defendants did so on November 29, 2021.[16]

UNDISPUTED MATERIAL FACTS

1. On March 21, 2016, Plaintiffs Farooq Nasserziayee, Lenore Supnet, and their daughter M.N. went horseback riding at Jacob’s Ranch.[17]

2. Prior to the start of the ride, Supnet signed a liability waiver (the “Release”) on behalf of her, Nasserziayee, and M.N.[18]

3. The Release contained the following relevant language:

INHERENT RISKS/ASSUMPTION OF RISKS: I ACKNOWLEDGE THAT: Horseback riding is classified as RUGGED ADVENTURE RECREATIONAL SPORT ACTIVITY & that risks, conditions, & dangers are inherent in (meaning an integral part of) horse/equine/animal activities regardless of all feasible safety measures which can be taken & I agree to assume them. The inherent risks include, but are not limited to any of the following: The propensity of an animal to behave in ways that may result in injury, harm, death, or loss to persons on or around the animal. The unpredictability of an equine’s reaction to sounds, sudden movement, unfamiliar objects, persons, or other animals. Hazards including but not limited to surface or subsurface conditions. A collision, encounter and/or confrontation with another equine, another animal, a person or an object. The potential of an equine activity participant to act in a negligent manner that may contribute to injury, harm, death, or loss to the participant or to other persons, including but not limited to failing to maintain control over an equine and/or failing to act within the ability of the participant . . . . I also acknowledge that these are just some of the risks & I agree to assume others not mentioned above.

. . .

I/WE AGREE THAT: I for myself & on behalf of my child and/or legal ward have been fully warned & advised by THIS STABLE that protective headgear/helmet, which meets or exceeds the quality standards of the SEI CERTIFIED ASTM STANDARD F 1163 Equestrian Helmet should be worn while riding, handling and/or being near horses & I understand that the wearing of such headgear/helmet at these times may reduce severity of some of the wearer’s head injuries & possibly prevent the wearer’s death from happening as the result of a fall & other occurrences. I/WE ACKNOWLEDGE THAT: THIS STABLE has offered me, & my child and/or legal ward if applicable, protective headgear/helmet that meets or exceeds the quality standards of the SEI CERTIFIED ASTM STANDARD F 1163 Equestrian Helmet. I/WE ACKNOWLEDGE THAT: Once provided, if I choose to wear the protective headgear/helmet offered that I/WE will be responsible for properly securing the headgear/helmet on the participant’s head at all times. I am not relying on THIS STABLE and/or its associates to check any headgear/helmet strap that I may wear, or to monitor my compliance with this suggestion at any time now or in the future.

. . .

I AGREE THAT [i]n consideration of THIS STABLE allowing my participation in this activity, under the terms set forth herein, I for myself and on behalf of my child and/or legal ward, heirs, administrators, personal representatives or assigns, do agree to release, hold harmless, and discharge THIS STABLE, its owners, agents, employees, officers, directors, representatives, assigns, members, owners of premises and trails, affiliated organizations, and Insurers, and others acting on their behalf (hereinafter, collectively referred to as “Associates”), of and from all claims, demands, causes of action and legal liability, whether the same be known or unknown, anticipated or unanticipated, due to

THIS STABLE’S and/or ITS ASSOCIATE’S ordinary negligence or legal liability; and I do further agree that except in the event of THIS STABLE’S gross negligence and/or willful and/or wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action, against THIS STABLE and ITS ASSOCIATES as stated above in this clause, for any economic or non-economic losses due to bodily in[j]ury and/or death and/or property damage, sustained by me and/or my minor child or legal ward in relation to the premises and operations of THIS STABLE, to include while riding, handling, or otherwise being near horses owned by me or owned by THIS STABLE, or in the care, custody or control of THIS STABLE, whether on or off the premises of THIS STABLE, but not limited to being on THIS STABLE’S premises.[19]

4. Plaintiffs allege that at some point during the ride, M.N. fell off her horse and was injured.[20]

DISCUSSION

Defendant’s Motion to Strike is Denied

Defendants moved to strike Plaintiffs’ Supplemental Response under Fed. R. Civ. P. 6, arguing it was filed untimely.[21] Although Defendant is correct that the Supplemental Response was filed untimely, the Motion to Strike will be denied.

DuCivR 7(1)(b)(3)(a) requires a party responding to a motion for summary judgment to file the response within 28 days of service.[22] Plaintiffs do not dispute that the Supplemental Response was filed more than 28 days after the Motion was served. Therefore, the Supplemental Response was filed untimely.

Rule 6 of the Federal Rules of Civil Procedure allows for an extension of a deadline after the deadline has passed. The United States Supreme Court has instructed courts that “any postdeadline extension [under Rule 6] must be on ‘upon motion made’ . . . .”[23] However, Rule 6(b)(1) should be “liberally construed to advance the goal of trying each case on the merits.”[24]Ute Indian Tribe of the Uintah & Ouray Rsrv. v. McKee[25]construed an opposition to a motion to strike as a “motion made” under Rule 6(b). For the same reasoning, the Supplemental Response is construed as a motion under Rule 6(b). Like the opposition in Ute Indian Tribe, the Supplemental Response contains a high degree of formality and precision, and presents arguments for an extension under Rule 6. Defendants have been noticed of and were permitted to respond to Plaintiffs’ arguments in the form of a reply. Therefore, the filing will be accepted if Plaintiffs have demonstrated excusable neglect.

When considering whether a Rule 6(b)(1) movant has shown excusable neglect, a court should consider (1) the danger of prejudice to the nonmoving party; (2) the length of the delay and any impact it may have on judicial proceedings; (3) the reason for the delay, including whether it was within reasonable control of the movant; and (4) whether the movant acted in good faith (the “Pioneer factors”).[26] Defendants filed their Motion for Summary Judgment on September 16, which included three new affidavits which Plaintiffs claim had not been disclosed to them prior to the Motion’s filing.[27] Plaintiffs filed a timely response on October 14[28], and then a supplemental response on October 28, which included a new affidavit from Mike Pelly, who was in the riding party when M.N. was allegedly injured.[29] Plaintiffs assert the reason for the late filing of the supplemental affidavit was that due to Defendants’ recent disclosure of new evidence, they were “put in the position of having to investigate, contact witnesses, and obtain refuting Affidavits on short notice.” and they were unable to obtain the Pelly affidavit prior to October 28.[30]

While Plaintiffs should have filed a motion to extend time, their actions are excusable under the circumstances. There is little danger of prejudice to Defendants, as they were able to respond to Plaintiffs’ arguments concerning the supplemental affidavit in a Supplemental Reply.[31] The length of the delay was only a matter of weeks, which courts have typically found to not be substantial, and will have minimal impact or delay on trial.[32] And all indications are that Plaintiffs acted in good faith. At least three of the four Pioneer factors favor a finding of excusable neglect. Accordingly, Defendants’ Motion to Strike will be denied, and Plaintiffs’ Supplemental Response and attached affidavit will be accepted.

Defendants’ Motion for Summary Judgment Will be Granted in Part and Denied in Part

“Summary judgment is proper if the movant demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.”[33] In applying that standard, a court views the factual record and any reasonable inferences therefrom in the light most favorable to the nonmoving party.[34] There is a genuine dispute of material fact if, based on the record as a whole, a reasonable factfinder could find in favor of the nonmoving party.[35]

A reasonable factfinder could find that Defendants were grossly negligent. Therefore, summary judgment will be denied on that count. However, a reasonable factfinder could not find Defendants committed intentional infliction of emotional distress. Therefore, summary judgment will be granted on that count.

A
Reasonable Factfinder Could Conclude Defendants Were Grossly Negligent

The Prior Ruling identified two pieces of evidence Plaintiffs submitted which, if believed by a jury, could support a finding of gross negligence. First, Plaintiffs submitted evidence that helmets were not offered. Second, Plaintiffs submitted evidence that Clay Doe encouraged the horses to go faster at one point, even though the horses carried inexperienced riders.

“In Utah, gross negligence is ‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'”[36]Under Utah law, resolution of a gross negligence claim is typically within the province of the factfinder.[37] Summary judgment is only appropriate on a gross negligence claim when “reasonable minds could reach but one conclusion” as to whether a defendant observed even slight care.[38]

After submitting multiple sets of affidavits alongside a renewed motion for summary judgment, Moving Defendants argue they have established that no reasonable fact finder could find helmets were not offered or the horses were encouraged to go faster. But the new affidavits only set up genuine issues of material fact, asking the court to resolve disputed questions of fact or credibility. Those questions are more properly addressed to the factfinder. Because there is sufficient evidence for a factfinder to conclude helmets were not offered to the group or that the horses were encouraged to go faster, and these acts may have caused M.N.’s injuries, summary judgment will be denied.

(1) There is Sufficient Evidence for a Factfinder to Conclude Helmets were not Offered to the Group

A reasonable factfinder could also conclude that Plaintiffs were not offered helmets by Moving Defendants. Plaintiffs have submitted affidavits by both Supnet[39] and a third-party present on the trail ride that day, Mike Pelley[40], that they did not observe helmets being offered to the group. Moving Defendants counters with affidavits from Jack Ruggles[41], Sheryl Mintz (who was a wrangler on the day of the incident at question)[42], and Dr. Fred Schwendeman, another third-party on the trail ride[43], that they observed helmets were made available to all members of the ride. It is the province of the factfinder, not a court ruling on a motion for summary judgment, to resolve competing and contradictory pieces of evidence.

Defendants argue that even taking Plaintiffs’ proffered affidavits as true, no factfinder could conclude that helmets were not offered to the group.[44] They argue the witnesses cannot testify that no one received a helmet, just that they did not personally observe any helmets being offered. But a reasonable factfinder could infer from Supnet and Pelley’s affidavits that no helmets were offered to the group. Taking all inferences in the light most favorable to Plaintiffs, a reasonable factfinder could find that helmets were not offered to the group.

Defendants also suggest that because Plaintiffs signed the Release, which contains a clause agreeing that the signer had been offered a helmet, no factfinder could conclude that Plaintiffs were not offered helmets.[45] While that clause may be evidence that Plaintiffs were offered helmets and may be relevant in evaluating an assumption of risk defense, it is not dispositive of helmets being actually provided. Resolution of such a question is within the province of the factfinder.

Moving Defendants also argue that any actions in failing to offer helmets were “at most” negligent, not grossly negligent.[46] The Prior Ruling concluded that a factfinder could find failure to offer helmets was grossly negligent. Moving Defendants have not offered any contrary case law. A reasonable factfinder could conclude a failure to offer helmets on a horseback ride constituted the failure to observe even slight care.

Therefore, a reasonable factfinder could conclude that Plaintiffs were not offered helmets, and such a fact-finding could constitute gross negligence.

(2) There is Sufficient Evidence for a Factfinder to Conclude that Clay Doe Told the Riders to Quicken the Pace.

There is sufficient evidence that Clay Doe may have told the riders to “quicken the pace, ” and that statement could support a claim for gross negligence. Plaintiffs have submitted an affidavit by Supnet that Clay Doe instructed the riders to quicken the pace. Supnet states in her affidavit that she heard Clay Doe make the statement, temporarily left M.N., and then returned to find M.N. fallen and injured on the ground.[47] Defendants argue that this evidence is insufficient to show that the statement to “quicken the pace” was the but for cause of M.N.’s injuries.[48] But in a motion for summary judgment, a court should make all inferences in favor of the non-moving party.[49] A reasonable factfinder could infer from Supnet’s affidavit that Clay Doe’s statement was the but for cause of M.N.’s injury, and led to M.N.’s horse accelerating, M.N. falling off her horse, and M.N.’s injury.

Moving Defendants further argue that Clay Doe was an independent contractor, and therefore, Moving Defendants cannot be liable under this theory.[50] If Clay Doe was an independent contractor, it is possible that Moving Defendants would not be liable for his actions. The status of Clay Doe as an independent contractor depends on many facts.[51] However, resolution of this question would have no effect on the Motion for Summary Judgment because other actions by Moving Defendants, such as the alleged failure to offer helmets, could support a finding of gross negligence. Therefore, whether Clay Doe was an independent contractor will not be resolved at this time.

(3) Plaintiffs’ affidavits are not “self-serving” and are proper to oppose summary judgment.

Defendants additionally argue that the affidavits Plaintiffs submit are “self-serving” and are thus insufficient to oppose summary judgment.[52] Their focus on whether the affidavits are self-serving is misplaced. “[V]irtually any party’s testimony can be considered ‘self-serving,’ and self-serving testimony is competent to oppose summary judgment.”[53] “So long as an affidavit is based upon personal knowledge and sets forth facts that would be admissible in evidence, it is legally competent to oppose summary judgment, irrespective of its self-serving nature.”[54] The affidavits Plaintiffs have submitted are based in key part on the declarant’s firsthand knowledge and observations, and are thus sufficient to oppose summary judgment.

Assumption of Risk Does Not Bar Plaintiffs’ Negligence Claims

Defendants initially argue Plaintiffs assumed the risk of any harm, based on the Release, the inherent risks of horseback riding, and Plaintiffs’ knowing disregard of those risks.[55] To the extent an assumption of the risk argument is relevant here, it will be a question for the factfinder to consider, preventing summary judgment on this issue.

There are three types of assumption of risk in Utah: primary express, primary implied, and secondary.[56]

• Primary express assumption of risk “involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another.”[57]

• Primary implied assumption of risk occurs in inherently risky activities, where the defendant as a matter of law owes no duty of care to a plaintiff for certain risks because no amount of care can negate those risks.[58]

• Secondary assumption of risk occurs when a person voluntarily but “unreasonabl[y] encounter[s] . . . a known and appreciated risk.”[59] Secondary assumption of risk is treated akin to contributory negligence, and is “no longer recognized in Utah as a total bar to recovery.”[60]

While Defendants presumably are arguing that the primary express and primary implied types of assumption of risk are relevant here, their arguments that Plaintiffs knowingly disregarded the risks of horse-riding seems more akin to secondary assumption of risk. Regardless of the type of assumption of risk Defendants are arguing, none would allow summary judgment to be granted on Plaintiffs’ claims.

Primary express assumption of risk does not bar Plaintiffs’ claims. Primary express assumption of risk allows a party to contract with another that they will not sue in case of injury or loss. This type of assumption of risk is more closely related to contract law, and typically takes the form of preinjury liability releases, such as the Release in this case.[61] The Prior Ruling held that the Release does not bar Plaintiffs’ claims for gross negligence. The Release shows that Plaintiffs only agreed to assume those “risks, conditions, & dangers [which] are inherent” to horseback riding. As discussed below, the negligence Defendants are accused of is not the type “inherent” to horseback riding. Accordingly, primary express assumption of risk does not bar Plaintiffs’ claims on this record.

Primary implied assumption of risk does not bar Plaintiffs’ claims. Primary implied assumption of risk only applies to “inherently risky” activities. In order for primary implied assumption of risk to bar a plaintiff’s claims, the injury must have resulted from a risk “inherent” to an activity, and be one that a defendant cannot eliminate through imposition of reasonable care.[62] Utah’s Equine and Livestock Activities Act (the “Act”)[63] has essentially codified this doctrine as it relates to horse-related injuries.[64] Both the Act and the doctrine of primary implied assumption of risk distinguish between injuries resulting from the inherent risks of the relevant activity and injuries resulting from negligent behavior. Inherent risks of horseback riding may include a horse’s propensity to bolt when startled or other unpredictable behavior.[65] It may also refer to a rider’s failure to control the animal or not acting within one’s ability.[66] If an injury “was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not . . . an inherent risk” of an inherently risky activity.[67] M.N.’s injury was alleged to have been caused by the grossly negligent behavior of Defendants in failing to offer M.N. a helmet and in urging the horses to speed up. These actions are not unavoidable risks – these risks could be eliminated by use of reasonable care. Whether primary implied assumption of risk could bar Plaintiffs’ claims depends on the factfinder’s conclusions as to what caused the injury. The disputed factual circumstances surrounding M.N.’s injury means that this question is not amenable to resolution on summary judgment. Therefore, primary implied assumption of risk would not bar M.N.’s claims at this stage.

Secondary assumption of risk does not bar Plaintiffs’ claims. Secondary assumption of risk, “the unreasonable encountering of a known and appreciated risk, ” is more properly viewed as an “aspect of contributory negligence.”[68] Contributory negligence is not a complete bar to recovery, but rather involves the apportionment of fault. Once the combined negligence of plaintiff and defendant has been established, evaluation of a comparative or contributory negligence defense is within the province of the factfinder.[69] There are genuine issues of material fact regarding both Defendants’ and Plaintiffs’ alleged negligence.[70] Therefore, it will fall to the fact finder to apportion fault in this case, and summary judgment based on secondary assumption of risk will not be granted.

The Prior Ruling Granted Summary Judgment on the Negligent Infliction of Emotional Distress Claim

Moving Defendants argue that summary judgment should be granted on the negligent infliction of emotional distress claim. The Prior Ruling already granted summary judgment on that claim, ruling that a negligent infliction of emotional distress claim was barred by the Release. Therefore, this argument is moot.

Summary Judgment Will be Granted on the Intentional Infliction of Emotional Distress Claim

Moving Defendants also request summary judgment on Plaintiffs’ intentional infliction of emotional distress claim (“IIED”). As Defendants correctly point out, the Prior Ruling did not rule on whether sufficient evidence had been presented to support an IIED claim, but only concluded that an IIED claim was not barred by the Release.

To establish a claim for IIED under Utah law, Plaintiffs must prove that (1) Defendants’ conduct was outrageous and intolerable; (2) that Defendants intended to cause or acted in reckless disregard of the likelihood of causing emotional distress; (3) that Plaintiffs suffered emotional distress; and (4) that distress was proximately caused by Defendants.[71] “[T]o to sustain a claim for intentional infliction of emotional distress, a defendant’s alleged conduct must be more than unreasonable, unkind, or unfair[;] it must instead be so severe as to ‘evoke outrage or revulsion.'”[72] Conduct is not outrageous merely because it is “tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal.” Rather, Utah courts have described the type of conduct required to sustain a claim for IIED as “extraordinary vile conduct, conduct that is atrocious, and utterly intolerable in a civilized society.”[73] The Tenth Circuit has similarly described Utah law as setting “high standards” to establish a claim for IIED.[74]

No reasonable factfinder could find that the conduct alleged by Plaintiffs rises to the level of outrage. Defendants’ alleged conduct in failing to provide a helmet and encouraging inexperienced riders to “quicken the pace” could evidence Defendants failed to observe even slight care, which would be sufficient to state a claim for gross negligence.[75] But as a matter of law, the alleged conduct does not constitute the extreme and outrageous conduct which Utah courts have required to establish a claim for IIED.

CONCLUSION AND ORDER

For the foregoing reasons, Moving Defendant’s Motion[76] is GRANTED IN PART and DENIED IN PART. Summary Judgment will be entered on the claim for Intentional Infliction of Emotional Distress. Summary Judgment will not be entered on the claim for gross negligence. Additionally, Defendants’ Motion to Strike[77] is DENIED.

18

———

Notes:

[1] Complaint, docket no. 2, filed March 4, 2019.

[2]
Id. at 3-4.

[3] First Amended Complaint, docket no. 33, filed April 14, 2020, at 3-4.

[4] Motion to Dismiss and for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC, docket no. 38, filed October 30, 2020.

[5]
Nasserziayee v. Ruggles, No. 4:19-CV-00022 DN PK, 2021 WL 778603 (D. Utah Mar. 1, 2021).

[6]
Id. at *4.

[7] Id.

[8]
Id. at *5.

[9] Docket no. 63, filed September 16, 2021.

[10] Plaintiffs’ Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues, docket no. 68, filed October 14, 2021.

[11] Plaintiffs’ Supplemental Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues, docket no. 70, filed October 28, 2021.

[12] Defendants’ Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 71, filed October 28, 2021.

[13] Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 (“Motion to Strike), docket no. 72, filed November 3, 2021.

[14] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1, docket no. 75, filed November 15, 2021.

[15] Docket no. 77, filed November 17, 2021.

[16] Defendants’ Supplemental Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 78, filed November 29, 2021.

[17] Motion at 4, Statement of Undisputed Facts at ¶1; Opposition at 3-4.

[18] Id.

[19] Motion at 4-5, Statement of Undisputed Facts at ¶2; Opposition at 4-6.

[20] Motion at 10, Statement of Undisputed Facts at ¶20.

[21] Motion to Strike at 2.

[22] DuCivR 7-1.

[23]
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 873 (1990).

[24]
Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016).

[25] No. 2:18-CV-00314 CW, 2019 WL 1931713, at *4 (D. Utah May 1, 2019).

[26] Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

[27] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 at 2.

[28] Plaintiffs’ Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues.

[29] Plaintiffs’ Supplemental Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues.

[30] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 at 2.

[31] Defendants’ Supplemental Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 78, filed November 29, 2021.

[32] See Ute Indian Tribe, 2019 WL 1931713, at *6.

[33]
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)).

[34] Adler, 144 F.3d at 670.

[35] See Finlinson v. Millard Cty., 455 F.Supp.3d 1232, 1238 (D. Utah 2020).

[36]
Penunuri v. Sundance Partners, Ltd., 423 P.3d 1150, 1159 (Utah 2017).

[37] Milne v. USA Cycling Inc., 575 F.3d 1120, 1130 (10th Cir. 2009)

[38] Penunuri, 423 P.3d at 1159.

[39] Affidavit of Lenore Supnet, docket no. 68-1, filed October 14, 2021.

[40] Affidavit of Mike Pelley, docket no. 70-1, filed October 28, 2021.

[41] Declaration of Jack Ruggles in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 64, filed September 16, 2021.

[42] Declaration of Sheryl Mintz in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 66, filed September 16, 2021.

[43] Declaration of Dr. Fred Schwendeman in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 67, filed September 16, 2021.

[44] Motion at 11-12.

[45]
Id. at 12-13.

[46] Motion at 11.

[47] Affidavit of Lenore Supnet, docket no. 68-1, filed October 14, 2021, at 4.

[48] Motion at 13.

[49]
Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984).

[50] Motion at 14.

[51] The allegation in the Amended Complaint that Defendant Jack (“Pappy”) Ruggles and Defendant Jacobs Ranch stated Defendant Joshua Ruggles was acting as an independent contractor is, like the Moving Defendants’ affidavits, not conclusive of independent contractor status. Amended Complaint at 3.

[52]
Id. at 10-11.

[53]
Greer v. City of Wichita, Kansas, 943 F.3d 1320, 1325 (10th Cir. 2019).

[54]
Janny v. Gamez, 8 F.4th 883, 900 (10th Cir. 2021) (quoting Speidell v. United States ex rel. IRS, 978 F.3d 731, 740 (10th Cir. 2020)).

[55] Motion at 16-17.

[56]
Rutherford v. Talisker Canyons Fin., Co., LLC, 445 P.3d 474, 488-89 (Utah 2019).

[57] Jacobsen Const. Co. v. Structo Lite Eng’g, Inc., 619 P.2d 306, 310 (Utah 1980).

[58] Rutherford, 445 P.3d at 489.

[59]
Id. (quoting Moore v. Burton Lumber & Hardware Co., 631 P.2d 865, 870 (Utah 1981)) (alterations and omission in original).

[60]
Hale v. Beckstead, 116 P.3d 263, 268 (Utah 2005).

[61] See Rutherford, 445 P.3d at 489.

[62] Id.

[63] Utah Code Ann. § 78B-4-202(2).

[64] See Feldman v. Salt Lake City Corp., 484 P.3d 1134, 1145 (Utah 2021) (discussing how the Utah legislature codified primary implied assumption of risk in the context of recreational park related injuries).

[65] See Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 989 (Utah 2013).

[66] Utah Code Ann. § 78B-4-201(5).

[67] See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991) (discussing primary implied assumption of risk in the context of ski resorts).

[68] Moore, 631 P.2d at 870.

[69] See Acculog, Inc. v. Peterson, 692 P.2d 728, 730 (Utah 1984).

[70] See Mason v. Brigham Young Univ., No. 2:06-CV-826 TS, 2008 WL 312953, at *2 (D. Utah Feb. 1, 2008).

[71] Retherford v. AT & T Commc’ns of Mountain States, Inc., 844 P.2d 949, 971 (Utah 1992), holding modified by Graham v. Albertson’s LLC, 462 P.3d 367 (Utah 2020).

[72]
Davidson v. Baird, 438 P.3d 928, 945 (Utah App. 2019), cert. denied, 440 P.3d 692 (Utah 2019) (quoting Cabaness v. Thomas, 232 P.3d 486 (Utah 2010), abrogated on other grounds by Gregory & Swapp, PLLC v. Kranendonk, 424 P.3d 897 (Utah 2018)) (internal quotation marks omitted).

[73]
Chard v. Chard, 456 P.3d 776, 791 (Utah App. 2019) (quoting Retherford, 844 P.2d at 977 n.19).

[74]
Hogan v. Winder, 762 F.3d 1096, 1112 (10th Cir. 2014).

[75] Penunuri, 423 P.3d at 1159.

[76] Docket no. 63, filed September 16, 2021.

[77] Docket no. 73, filed November 3, 2021.

———


Sturm v. Weber (D. Colo. 2022)

Sturm v. Weber (D. Colo. 2022)

SANDRA STURM, and TIMOTHY STURM and SANDRA STURM, as parents and next friends of their minor child, HOLLY STURM Plaintiff,
v.
JOSEF WEBER a/k/a JOSEPH WEBER, KRABLOONIK, INCORPORATED, Defendants.

Civil Action No. 21-cv-0684-WJM-GPG

United States District Court, D. Colorado

June 16, 2022

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

William J. Martínez United States District Judge

Plaintiffs Sandra Sturm individually, and Sandra and Timothy Sturm as parents and next friends of their minor child, Holly Sturm, (collectively, “the Sturms”) sue Defendants Josef Weber and Krabloonik, Incorporated (jointly, “Defendants”) for negligence, negligent misrepresentation, and, in the alternative, premises liability pursuant to the Colorado Premises Liability Act (“CPLA”), Colorado Revised Statutes §13-21-115, for injuries sustained during a 2019 dogsledding accident in Snowmass Village, Colorado. (ECF No. 5.) This matter is before the Court on Defendants’ Motion for Summary Judgment (“Motion”) (ECF No. 31.) Defendants make one argument- because the Sturms released Defendants of all claims for negligence, Plaintiffs cannot maintain this lawsuit as a matter of law. (ECF No. 31 at 2.) In support, Defendants attach signed copies of Krabloonik’s Participant Agreement, Release and Assumption of Risk (“Participant Agreement”) (ECF No. 31-1 at 3-4.)

Due to the early stage of the litigation at which the Motion was filed and the purely legal basis of Defendants’ argument, the record was not as robust as the Court would normally see on a motion for summary judgment. No doubt this in great part reflects the fact that the Motion was filed prior to the close of discovery. Given the legal nature of Defendants’ sole argument, and state of the record at the time the Motion was filed, the Court exercises its discretion to construe the Motion as a motion directed to the sufficiency of the factual allegations of Plaintiffs’ operative complaint under Federal Rules of Civil Procedure Rule 12(b)(6) (“Construed Motion”). For the reasons set forth below, the Construed Motion is granted in part and denied in part.

I. BACKGROUND[1]

Krabloonik is a recreational dogsled operation in Snowmass Village, Colorado. (ECF No. 31 at 2.) Krabloonik employs “mushers” to steer the dogsleds during the rides it offers its customers. (See ECF No. 31 at 1-2.) Krabloonik’s dogsleds are not equipped with track-braking systems; instead, mushers are trained to use resistance and counterbalance to steer and control the speed of Krabloonik’s dogsleds. (ECF No. 32 at 11; ECF 38-1 at 2.) Josef Weber operated Sandra and Holly Sturm’s dogsled on March 11, 2019. (ECF No. 31 at 3 ¶¶ 6-7.)

Prior to embarking on the dogsled ride with Weber, Sandra and Timothy Sturm each signed a copy of Krabloonik’s Participant Agreement. (See ECF No. 31-1 at 3-4; ECF No. 31-2 at 10.) The parties agree that Sandra Sturm signed the Participation Agreement on her own behalf. (ECF No. 31 at 2.) The parties disagree, however, on whether the Participation Agreement signed by Timothy Sturm was properly signed on behalf of Holly Sturm. (See ECF No. 31 at 2; ECF No. 32 at 4.)

The Participant Agreement provides two spaces for signatures: one for customers 18 years of age and over to sign for themselves, and one for parents or guardians to sign on behalf of a minor. (ECF No. 31-1 at 3.) The section to be completed on behalf of a minor provides a large space with instruction to “print [the] minor’s name].” (Id.) Holly Sturm’s name does not appear on this line on either copy of the Participant Agreement completed by the Sturms. (Id. at 3-4.) The form completed by Timothy Sturm has “Timothy Whitney Holly” written at the bottom of the page on and near the line provided for the signature of the minor’s parent or guardian. (Id. at 3.)

The Participant Agreement included the following exculpatory provisions:

I hereby agree to release, indemnify, and discharge KKEN, [2]on behalf of myself, my spouse, my children, my parents, my heirs, assigns, personal representative and estate as follows:

1. I acknowledge that my participation in dog sled tour activities entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties….

The risks include, among other things: . . . losing control of the dogs may result in collisions with other sleds and/or manmade and natural objects such as bridges, trees, rocks, cliffs, streams and other obstacles; . . . equipment failure; . . . I understand that sled dog touring is a wilderness activity that exposes me to all elements of the outdoors and natural surroundings.

Furthermore, KKEN employees have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant’s fitness or abilities. They might misjudge the weather or other environmental conditions. They may give incomplete warnings or instructions, and the equipment being used might malfunction.

2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless KKEN from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of KKEN’s equipment or facilities, including any claims which allege negligent acts or omissions of KKEN….

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 against KKEN on the basis of any claim from which I have released herein.

I have had sufficient opportunity to read this entire document. I have read and understood it, and I agree to be bound by its terms….

In consideration of (print minor’s name) (“Minor”) being permitted by KKEN to participate in its activities and to use its equipment and facilities . . . I further agree to indemnify and hold harmless KKEN from any and all claims which are brought by, or on behalf of Minor . . . connected with such use or participation by Minor.

(ECF No. 31-1 at 3 (emphasis in original).)

According to his Musher Accident Report, Weber steered the dogsled into a rut, causing it to tip. (ECF No. 32-12.) When Weber attempted to level the dogsled, he fell off, leaving Sandra and Holly Sturm on a runaway sled. (Id.) Without Weber to break and steer, the dogsled did not come to a stop until it collided with a tree. (Id.) Plaintiffs claim that as a result of the collision, Holly Sturm suffered a broken leg that had to be surgically repaired and Sandra Sturm injured her elbow. (ECF No. 5 at 4 ¶¶ 22, 28.) Per the Amended Complaint, Holly Sturm also suffers from PTSD, mental stress, and anxiety as a result of the dogsledding incident. (Id. at 4 ¶ 22.)

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a cause of action for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

III. ANALYSIS

In the Construed Motion Defendants argue that the Participation Agreement bars all of Plaintiffs’ claims. Plaintiffs argue that dismissal is inappropriate for two reasons: (1) under Colorado law, an exculpatory agreement cannot shield against willful and wanton acts or omissions; and (2) the Participation Agreement is invalid under Jones v. Dressel, 623 P.2d 370 (Colo. 1981).

A. Holly Sturm’s Claims

Timothy Sturm, as Holly Sturm’s parent, is permitted to waive negligence claims on her behalf. See C.R.S. § 13-22-107(3) (“A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.”) Therefore, the Court agrees with Defendants that the lack of Holly Sturm’s signature is irrelevant. Notwithstanding this fact, the Court cannot find as a matter of law that the Participation Agreement signed by Timothy Sturm is an effective release of his daughter’s claims. No name-let alone Holly’s-appears in the clearly marked space provided to identify the minor whose claims are being released, and neither party has explained to the Court who “Whitney” is. Therefore, the Court denies the Construed Motion with respect to Holly Sturm’s claims.

B. Sandra Sturm’s Claims

“Under Colorado law, ‘exculpatory agreements have long been disfavored,’ B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established that such agreements cannot ‘shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,’ Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010).” Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1249 (10th Cir. 2018). “But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016).

“The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). Accordingly, the Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language [collectively, the ‘Jones factors’].” Id. An exculpatory agreement “must satisfy all four factors to be enforceable.” Raup v. Vail Summit Resorts, Inc., 734 Fed.Appx. 543, 546 (10th Cir. 2018).

1. Willful and Wanton Conduct

Plaintiffs argue that the exculpatory provisions of the Participation Agreement cannot be enforced in this instance because Plaintiffs’ injuries are the result of Defendants’ willful and wanton conduct. (ECF No. 32 at 8.) Defendants argue the Court cannot consider whether Defendants’ conduct was willful and wanton because Plaintiffs have not properly pleaded such conduct in the Amended Complaint. (ECF No. 31 at 12.) Plaintiffs erroneously claim that they do not need to have pleaded willful and wanton conduct for the Court to consider their arguments.[3] (ECF No. 32 at 15-16; s ee Suddith v. Citimortgage, Inc., 79 F.Supp.3d 1193, 1198 n.2 (citing Jojola 55 F.3d 488, 494 (10th Cir. 1995)).) While Plaintiffs do not explicitly describe Defendants’ conduct as “willful and wanton” in the Amended Complaint (see ECF No. 5), the sufficiency of Plaintiffs’ pleading is determined by the presence (or lack) of facts rather than talismanic phrases. See Schneider, 493 F.3d at 1177.

The Court has reviewed the Amended Complaint, in the light most favorable to Plaintiffs, with an eye for allegations that might sufficiently plead willful and wanton conduct. Under Colorado law, “[w]illful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others.” Forman v. Brown, 944 P.2d 559, 564 (Colo.App. 1996). The Court finds only one allegation that can fairly be characterized as pleading conscious disregard for the safety of others. In their Second Claim for Relief (Negligence – Krabloonik, Inc.), Plaintiffs allege Defendant Krabloonik “put[] profit over safety by deliberately choosing to continue dog sledding trips on unsafe terrain and in unsafe weather conditions.” (ECF No. 5 at 8 ¶ 42.a.) Though this allegation is relatively thin, the Court finds that when considered in connection with the factual allegations relating to the icy terrain, lack of snow, and obstacles on the dogsled track, it is sufficient to plead willful and wanton conduct. Therefore, Defendants’ Construed Motion is denied with respect to Sandra Sturm’s Second Claim for Relief.

2. Validity of the Participation Agreement Under Jones

Defendants discuss each of the four Jones factors. (ECF No. 31 at 3-11.) In their Response, Plaintiffs only address the fourth Jones factor and concede that “[f]or recreational releases such as the one at issue here, the issue generally turns on the final Jones factor.” (ECF No. 32 at 17.) Given Plaintiffs’ concession, the Court concludes that the Participation Agreement satisfies the first three Jones factors, and therefore the Court need only address the fourth factor.

Under the fourth factor, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989). The Colorado Supreme Court has explained that “[t]o determine whether the intent of the parties is clearly and unambiguously expressed, [a court may] examine[ ] the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.'” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).

After carefully analyzing the Participation Agreement, the Court finds that it was the intent of the parties to extinguish liability, and this intent was clearly and unambiguously expressed. The language in the Participation Agreement is not overburdened with extensive or complex legal jargon, nor is the Participation Agreement inordinately long (less than a page) or unusually complicated. See Lahey v. Covington, 964 F.Supp. 1440, 1445 (D. Colo. 1996) (concluding that a release agreement of “just over one page” was “short”).

Moreover, the Court finds that the organization of the Participation Agreement makes it highly unlikely that the exculpatory provisions could have been missed or reasonably misunderstood. See Chadwick, 100 P.3d at 468. The very top of the form reads, in bold font and all capital letters, “PARTICIPATION AGREEMENT, RELEASE AND ASSUMPTION OF RISK.” (ECF No. 31-1 at 3.) Sections of the Participation Agreement are written in bold font to draw the eye, including provisions highlighting the wide range of risks related to participation in the dogsled ride and releasing potential future claims alleging “negligent acts or omissions.” (Id.) Immediately above Sandra and Timothy Sturm’s signatures are two sentences whereby they acknowledged the opportunity to read the Participation Agreement in full and agreed that they had in fact read and understood it. (ECF No. 31-1 at 3-4.) The Court therefore finds that, under the standard articulated by the Colorado Supreme Court in Chadwick, the exculpatory provisions of the Participation Agreement were clear and unambiguous. See Chadwick, 100 P.3d at 467-68.

Plaintiffs maintain that the Participation Agreement is not enforceable because the provisions do not contain “specific language making reference to specific risks, specific activities, and specifically waiving personal injury claims based on the activity being engaged in.” (ECF No. 32 at 18 (citing Wycoff v. Grace Church of the Assemblies of God, 251 P.3d 1260, 1265 (Colo.App. 2010)).) According to Plaintiffs, because the Participation Agreement does not explicitly reference the possibility of the precise course of events Plaintiffs allege occurred, [4] the exculpatory provisions therein are invalid. (ECF No. 32 at 18-22.)

Contrary to Plaintiffs’ argument, Colorado law does not require “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 873 (10th Cir. 2013); see also Heil Valley Ranch, 784 P.2d at 785. Here, again, the Court finds that the exculpatory provisions of the Participation Agreement unambiguously reflect the parties’ intent to extinguish liability for Plaintiffs’ type of claims.

Plaintiffs also allege they were injured when Weber lost control of the dogsled Sandra and Holly Sturm were on, causing it to careen into a tree. (ECF No. 5 at 2 ¶¶ 89.) However, Plaintiff “expressly agree[d] and promise[d] to accept and assume all of the risks existing” in the dogsled ride, including “collisions with other sleds and/or manmade and natural objects such as . . . trees.”[5] (ECF No. 31-1 at 3.) Plaintiff alleges Krabloonik failed to install a braking system to help mushers control the speed of dogsleds (ECF No. 5 at 9 ¶ 42), but Plaintiffs expressly waived all “claims which allege negligent acts or omissions” by Defendants. (ECF No. 31-1 at 3 (emphasis in original).) Plaintiffs allege Weber lost control due to icy conditions and because the dogsled hit a rut (see ECF No. 5 at 3 ¶ 11); however, among the risks Plaintiffs agreed to accept and assume was the possibility that Weber might “misjudge the weather or other environmental conditions” and, again, they waived all claims alleging negligence. (ECF No. 31-1.) Thus, it is irrefutable that the Participation Agreement reflects an intent of the parties to extinguish liability for Plaintiffs’ type of claims, and that Plaintiffs’ alleged injuries are the type of injuries contemplated by the Participation Agreement.

For all these reasons, the Court finds that all four of the Jones factors are satisfied and that the exculpatory provisions of Participation Agreement are valid and enforceable as a matter of law. See Anderson v. Eby, 998 F.2d 858, 862 (10th Cir. 1993) (“If the plain language of the waiver is clear and unambiguous, it is enforced as a matter of law.”). In addition, the Court finds Plaintiffs’ claims fall within the scope of the enforceable Participation Agreement. Accordingly, dismissal of Sandra Stum’s claims, other than her Second Claim for Relief, is appropriate.

IV. CONCLUSION

Since the Construed Motion was briefed, discovery in this case has closed. In this Order the Court has considered and ruled on the Construed Motion solely in light of the pleading requirements of Rule 12(b)(6). As a result, the parties have not yet had the opportunity to fully brief the question, as it regards the claims not dismissed by the terms of this Order, of whether there are no genuine issues of material fact entitling the movant under Rule 56 to judgment as a matter of law. Therefore, the provisions of WJM Revised Practice Standards III.F.2 notwithstanding, the Court will grant Defendants leave to file a renewed motion under Rule 56 addressing all evidence in the record through the close of discovery, and directed solely to the remaining claims in this case.

For the reasons set forth above, the Court ORDERS as follows:

1. Defendants’ Construed Motion to Dismiss (ECF No. 31) is GRANTED IN PART and DENIED IN PART as set forth above;

2. Defendants are granted leave to file a renewed motion for summary judgment by no later than July 15, 2022;

3. Plaintiffs shall file their response to Defendants’ motion for summary judgment, if any, by no later than August 5, 2022; and

4. Defendants shall file their reply in support of their renewed motion, if any, by no later than August 19, 2022.

———

Notes:

[1] The following facts are undisputed unless attributed to a party or otherwise noted. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document’s internal pagination.

[2] KKEN is defined as “Krabloonik Kennels, their agents, owners, officers, volunteers, participants, employees, and all other persons or entities acting in any capacity on their behalf” in the Participant Agreement. (ECF No. 31-1 at 3.)

[3] Plaintiffs also argue that, if the Court finds their pleading insufficient, they can amend under Rule 15. However, Plaintiffs have not requested leave to amend. Even if the Court construes this argument as a motion for leave to amend their complaint, Plaintiffs’ mid-brief request directly violates D.C.COLO.LCivR 7.1(d)’s admonition that “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” It also contradicts the undersigned’s more explicit instructions in his Revised Practice Standard III.B. Therefore, the Court considers this argument no further.

[4] Plaintiffs stress that Krabloonik was on notice from prior incidents that certain risks might materialize. (See, e.g., ECF No. 32 at 18) (“[In the Participation Agreement” there is a complete lack of discussion on numerous specific safety risks which Krabloonik was well aware of prior to the incident.”).)

[5] Plaintiff argues that this provision is not specific enough to effectively waive liability because it indicates that losing control of dogs, rather than mushers falling off the dogsled, can lead to collisions with trees. (ECF No. 32 at 18-19.) The Court disagrees. The portion of the Participation Agreement containing this phrase is merely a set of examples, and not an exhaustive, itemized list of potential harms being disclaimed. The Participation Agreement provides that claims arising from collisions with objects resulting in injury are among the types of claims the parties intended to extinguish. Under Jones and Chadwick, this is enough.

———


Lukken v. Fleischer, 962 N.W.2d 71 (Iowa 2021)

962 N.W.2d 71

Thomas LUKKEN, Appellant,
v.
Korby L. FLEISCHER, individually and d/b/a Mt. Crescent Ski Area ; Samantha Fleischer, individually and d/b/a Mt. Crescent Ski Area; Mt. Crescent Ski Area, an unknown business entity; Safehold Special Risk, Inc., an Illinois corporation; Challenge Quest, LLC, an Oklahoma Corporation d/b/a Challenge Quest, LLC ; and Kirk Gregory Engineering, P.C., a Texas Corporation; KG Structural Solutions, LLC, a Texas Corporation; and Atlas Engineering, LLC, a Nebraska Corporation, Appellees.

No. 20-0343

Supreme Court of Iowa.

Submitted March 24, 2021
Filed June 30, 2021

Matthew A. Lathrop (argued) of Law Office of Mathew A. Lathrop, Omaha, Nebraska, and Robert M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs, for appellant.

Thomas Henderson (argued) and Peter J. Chalik of Whitfield & Eddy, P.L.C., Des Moines, for Mt. Crescent appellees.

Joshua S. Weiner (argued) and Robert M. Slovek of Kutak Rock LLP, Omaha, Nebraska, for appellee Challenge Quest, LLC.

McDermott, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Mansfield, McDonald, and Oxley, JJ., joined. Appel, J., filed an opinion concurring specially.

McDERMOTT, Justice.

Thomas Lukken stepped off an elevated platform and sped down a zip line at the Mt. Crescent Ski Area. An employee at the end of the zip line had failed to reset the zip line’s braking system after the previous rider exited. By the time the employee realized his mistake, it was too late. Lukken slammed into a wooden pole at the base of the zip line and fractured his neck. He sued the zip line’s original designer and its owner. The district court dismissed the claims against the zip line’s designer primarily based on the fact that the braking system that failed to stop Lukken had been completely replaced by a different supplier before the incident. And the district court dismissed the claims against the zip line’s owner based on a liability waiver that Lukken signed before riding. Lukken appeals.

I.

Double Diamond, Inc. d/b/a Mt. Crescent Ski Area (Mt. Crescent) operates a skiing and sledding business in winter months and offers other outdoor recreational activities, including zip lining, in warmer months. The zip line begins on a twenty-four-foot-high platform atop the ski hill. Harnessed riders travel down the zip line reaching speeds of up to forty miles per hour before landing on a lower thirty-three-foot-high landing platform at the bottom of the hill. The zip line extends 1576 feet from start to finish.

In April 2014, Mt. Crescent contracted with Challenge Quest, LLC, to build and install the zip line. Challenge Quest designed the zip line to have enough slack so that riders would nearly run out of momentum before reaching the landing platform. To bring riders nearing the landing platform to a complete stop, a small device with wheels that rode on top of the zip line and connected the rider’s harness to the zip line (referred to as a “trolley”) made contact with a padded brake block. The brake block connected to a rope-pulley system. An operator on the landing platform held onto a rope connected to the pulley and applied manual resistance to bring riders to a complete stop. This rope-braking feature slowed riders as the rope ran through the operator’s hands, with operators tightening or releasing their hold as needed to apply the appropriate amount of friction. Because slack in the zip line could cause riders to slide back away from the landing platform once a rider’s forward momentum stopped, the brake block also featured a capture arm that prevented riders from backsliding. The operator used the same rope-pulley system to pull stopped riders all the way onto the landing platform. After an operator unhooked a completed rider on the landing platform, the operator would use the same rope-pulley system to manually move the brake block back out for the next rider.

Challenge Quest completed construction of the zip line in August 2014. It then provided, as contemplated by the parties’ contract, a four day “site specific high technical training for full time staff,” including training on the braking system, after which it turned full control of the zip line over to Mt. Crescent. After the zip line opened to the public, Mt. Crescent’s operators in several instances failed to sufficiently slow riders using grip friction on the rope to control the brake block. Riders arrived at the landing platform at speeds in excess of six miles per hour, the maximum recommended by a trade association called the Association for Challenge Course Technology (ACCT), which develops safety standards for zip line courses. In some cases, these riders collided with the Mt. Crescent employees engaged in stopping them. A handful of injuries resulted, the most serious apparently being an injured ankle.

Mt. Crescent decided to consult with a different contractor about a different braking system than the original one Challenge Quest had installed. This new contractor, Sky Line, inspected Mt. Crescent’s zip line and recommended a “zipSTOP” braking system. Mt. Crescent had initially considered a zipSTOP braking system as part of the zip line that Challenge Quest designed but decided against it. Mt. Crescent agreed with Sky Line’s recommendation and hired Sky Line to install the zipSTOP system on its existing zip line. Sky Line completed the installation in July 2016. Mt. Crescent informed Challenge Quest of none of this.

Like the original braking system, the zipSTOP braking system also uses a brake block to bring riders to a complete stop. But instead of rope pulleys controlling the brake block using an operator’s hand resistance, the brake block uses a magnetic-resistance wheel to bring riders to a complete stop. The brake block automatically moves back to the correct position on the zip line in preparation for the next rider, but an operator must manually redeploy it before it will move.

Lukken rode Mt. Crescent’s zip line in October 2016 with the zipSTOP braking system in place. The Mt. Crescent employee on the landing platform forgot to redeploy the brake block after the rider ahead of Lukken finished. Lukken was already whizzing down the zip line toward the landing platform by the time the operator realized his mistake. The operator’s tardy redeployment of the zipSTOP braking system didn’t permit enough time for it to stop Lukken, and he crashed into a wooden pole at the base of the zip line and suffered a neck fracture.

Before riding on the zip line, Lukken signed a release and waiver-of-liability agreement in favor of Mt. Crescent. It stated in relevant part:

I am aware and fully understand that these activities are very dangerous. They involve the risk of damage, serious injury and death, both to myself and to others.

I understand that there are many potential causes for property damage, serious injury and death at Mt Crescent Ski Area including the negligence of Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, and equipment as well as my own negligence and the negligence of others.

In consideration of being permitted to participate in the activities offered at Mt Crescent Ski Area I hereby agree to release, waive, discharge, and covenant not to sue Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, or rescue personnel as well as any equipment manufacturers and distributors involved with the Mt Crescent Ski Area facilities from any and all liability from any and all loss or damage I may have and any claims or demands I may have on account of injury to my person and property or the person and property of others, including death, arising out of or related to the activities offered at Mt Crescent Ski Area whether caused by the negligence of Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, equipment manufacturers, or distributors or otherwise.

….

In consideration of being permitted to participate in the activities offered at Mt Crescent Ski Area, I agree that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to any and all acts of negligence by Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, and equipment manufacturers, and distributors, including negligent rescue operations and is intended to be as broad and inclusive as permitted by Iowa law and that if any portion is held invalid, it is agreed that the balance shall continue in full legal force and effect.

He filed suit against Mt. Crescent (and related individuals and entities alleged to own it) and Challenge Quest (and related entities alleged to have participated in the zip line’s design and construction), pleading causes of action for negligence and strict liability, and requesting punitive damages.

The district court granted summary judgment in favor of Challenge Quest, holding that it breached no duty to Lukken and that it didn’t cause Lukken’s injuries. The district court reasoned that Challenge Quest owed no duty to Lukken because it had completed its work under its contract and transferred control of the zip line to Mt. Crescent by the time of the incident, and, further, that its actions were not the “cause” of Lukken’s injuries because it didn’t install the allegedly defective braking system in place when Lukken was injured.

The district court also granted summary judgment in favor of Mt. Crescent, holding the waiver dispositive of the claims. The district court reasoned that Iowa courts consistently uphold exculpatory agreements and that the waiver at issue contained language sufficiently “clear and unequivocal” to demonstrate that Lukken understood he was waiving future claims of negligence. The court held that the express language of waiving “any and all negligence” waived all of Lukken’s negligence claims, including his claim for gross negligence. The district court declined to hold the waiver unenforceable based on public-policy grounds and held that the waiver wasn’t preempted by statute.

Lukken appeals each of the district court’s summary judgment rulings.

II.

We turn first to Lukken’s claims against Challenge Quest. Lukken pleaded claims against Challenge Quest under theories of both negligence and strict liability. Yet his summary judgment and appellate briefing contain no separate legal arguments distinguishing the two theories. He cites no products liability law despite the fact that his petition alleges claims for strict liability based on design defects in the zip line. He instead focuses solely on traditional negligence principles. We will thus analyze Challenge Quest’s liability through the lens of a negligence claim.

To maintain a claim for negligence, Lukken must prove that Challenge Quest owed a duty to protect him from the harm he suffered. See
Thompson v. Kaczinski , 774 N.W.2d 829, 834 (Iowa 2009). Lukken contends that Challenge Quest owed a bevy of duties to Mt. Crescent, including a duty (1) to design and construct a zip line that complied with industry standards, (2) to provide Mt. Crescent appropriate instruction on how to operate the zip line, (3) to address Mt. Crescent’s safety concerns about the zip line, (4) to ensure that Mt. Crescent had procedures in place to train new employees, and (5) to address safety issues with Mt. Crescent arising in future safety inspections. Lukken argues that Challenge Quest owes each of these duties to Mt. Crescent and, based on the risk of physical harm to Mt. Crescent’s zip line riders, these duties extend to Lukken as well.

Whether a defendant owes a duty of care under particular circumstances is a question of law for the court. Hoyt v. Gutterz Bowl & Lounge L.L.C. , 829 N.W.2d 772, 775 (Iowa 2013). The district court in granting summary judgment held that Challenge Quest owed Lukken no duty of care for the injury he sustained. We review the district court’s holding for correction of legal error. Lewis v. Howard L. Allen Invs., Inc. , 956 N.W.2d 489, 490 (Iowa 2021).

The central issue here is the scope of Challenge Quest’s duty in regard to the braking system after the braking system had been replaced without Challenge Quest’s involvement. We have reiterated that, under the Restatement (Third) of Torts, control remains an important consideration in whether a duty exists and liability normally follows control. See
McCormick v. Nikkel & Assocs., Inc. , 819 N.W.2d 368, 371–73 (Iowa 2012). In McCormick v. Nikkel & Associates, Inc. , we held as a matter of law that a subcontractor owed no duty to assure the safety of a jobsite once it locked up the switchgear and transferred control back to the contractor. Id. at 373–75. So too here, once Mt. Crescent decided to replace the braking system, any machine- or human-related flaws in that system ceased to be Challenge Quest’s responsibility. Challenge Quest’s braking system didn’t fail; it no longer existed. Challenge Quest likewise had no connection to the actions of Mt. Crescent’s employee who failed to reset the brake in time to stop Lukken. The employee didn’t work for Mt. Crescent when Challenge Quest conducted its four-day technical training for Mt. Crescent employees prior to Mt. Crescent opening the course to the public. Challenge Quest had no role in the employee’s hiring, supervision, or instruction.

And Challenge Quest neither designed nor constructed the braking system that the employee failed to reset when Lukken rode the zip line. By that time, Sky Line’s zipSTOP braking system had replaced Challenge Quest’s original system. Challenge Quest owed no duty of care to prevent Mt. Crescent from changing the braking system. Because Challenge Quest owed no duty of care associated with the zip line’s braking system after its own braking system had been uninstalled, no cause of action for negligence exists as a matter of law, and the district court thus properly granted summary judgment in Challenge Quest’s favor.

Lukken argues more specifically that Challenge Quest should have incorporated an emergency brake as part of its original braking system. But this argument fails, too, based on the replacement of the braking system and Challenge Quest’s lack of any control at that point. When Mt. Crescent decided to install a different braking system, it became the responsibility of Mt. Crescent and Sky Line to assure the safety of that system. Challenge Quest’s original braking system (without an emergency brake) apparently resulted in some minor mishaps until it was replaced in July 2016. Sky Line’s replacement braking system (without an emergency brake) had the potential to result in a more serious accident in the event of an operator’s error. It would be unfair to make Challenge Quest legally responsible for this replacement system. See
Huck v. Wyeth, Inc. , 850 N.W.2d 353, 381 (Iowa 2014) (reaffirming the “long-standing” rule that requires the plaintiff “to prove the defendant manufactured or supplied the product that caused her injury, and [declining] to extend the duty of product manufacturers to those injured by use of a competitor’s product”). In this case, to the extent any product failed, it wasn’t Challenge Quest’s product. Cf. Weyerhaeuser Co. v. Thermogas Co. , 620 N.W.2d 819, 825 (Iowa 2000) (en banc) (“[T]o establish assembler liability, the plaintiff must show that the assembler actually sold or otherwise placed the defective product on the market. Baughman [ v.
Gen. Motors Corp. , 780 F.2d 1131, 1132–33 (4th Cir. 1986)] (refusing to hold truck manufacturer liable for defective wheel rim that was placed on vehicle after sale and that manufacturer did not supply); Exxon [ Shipping Co. v. Pac. Res., Inc. , 789 F. Supp. 1521, 1522–23, 1527 (D. Haw. 1991)] (refusing to hold designer of mooring terminal liable for defective replacement chain).”) That Lukken claims the new, different product was similarly defective does not provide him a basis to pursue Challenge Quest for a defect in a product that Lukken never used and that didn’t injure him. See Restatement (Third) of Torts: Prod. Liab. § 15 cmt. b , illus. 2, at 232 (Am. L. Inst. 1998).

Lukken also contends that Challenge Quest’s zip line design defects caused riders to reach speeds in excess of ACCT’s standards, which left the braking system unable to safely stop him. But the record demonstrates that Sky Line independently examined the existing zip line, recommended the zipSTOP braking system, and (at Mt. Crescent’s direction) installed it. As the district court correctly found, the actions of Sky Line and Mt. Crescent cut off Challenge Quest’s liability. See
McCormick , 819 N.W.2d at 374 (noting that the party in control “is best positioned to take precautions to identify risks and take measures to improve safety”). In this case, when Mt. Crescent scrapped Challenged Quest’s original braking system and installed Sky Line’s zipSTOP braking system, Challenge Quest was relieved of any liability associated with insufficient stopping capacity or other defects in its original braking system.

Lukken further claims that Challenge Quest breached a duty to provide Mt. Crescent information, training, and policies to ensure Mt. Crescent’s safe ongoing operation of the zip line. Lukken asserts that had Challenge Quest instructed Mt. Crescent on safety procedures that included, for instance, operational redundancies or checklists, Mt. Crescent might have ensured the braking system was properly deployed and cross-checked before Lukken ever started down the zip line. But this claimed duty on Challenge Quest fails for reasons inherent in the different braking systems that were installed. The original braking system required an employee’s active, manual stopping efforts to ensure riders stopped at the landing platform. Yet the zipSTOP system stops riders through an automated brake that requires no similar manual exertion. Challenge Quest had no reason to provide the type of instruction or policies that would have caused Mt. Crescent’s employees to remember to redeploy an automated braking system that, at the time, didn’t exist on this zip line. Challenge Quest trained Mt. Crescent’s employees on how to stop a rider using the original manual stopping method; we see no basis to impose on Challenge Quest some requirement to provide instruction or procedures on operating a distinct braking system that hadn’t been installed. On these facts, Challenge Quest had no duty to provide training or policies on the safe operation of a braking system that relied on a completely different stopping mechanism and that required completely different actions by Mt. Crescent’s employees.

We thus affirm the district court’s grant of summary judgment in favor of Challenge Quest.

III.

We turn to the dismissal of Lukken’s negligence claim against Mt. Crescent.

The district court found that the waiver Lukken signed before riding the zip line was “broad in its inclusiveness and contained clear and unequivocal language sufficient to notify Plaintiff that by signing the document, he would be waiving all future claims for negligence against Defendants.” Lukken argues that even if the waiver’s language could be considered “clear and unequivocal,” Mt. Crescent’s negligence went beyond ordinary negligence and into the realm of gross negligence. He argues that the gross negligence alleged in this case involves conduct more culpable than the inadvertence or inattention of ordinary negligence and that, as a matter of public policy, Iowa courts should not enforce clauses that exculpate parties from grossly negligent conduct.

Exculpatory clauses, sometimes referred to as “hold harmless” clauses, relieve parties from responsibility for the consequences of their actions. “[W]e have repeatedly held that contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy.” Huber v. Hovey , 501 N.W.2d 53, 55 (Iowa 1993). An enforceable waiver must contain “clear and unequivocal language” notifying a casual reader that by signing, she agrees to waive all claims for future acts or omissions of negligence. Sweeney v. City of Bettendorf , 762 N.W.2d 873, 878–79 (Iowa 2009). An intention to absolve a party from all claims of negligence must be clearly and unequivocally expressed in the waiver. Id. at 878–79 ; see also
Baker v. Stewarts’ Inc. , 433 N.W.2d 706, 709 (Iowa 1988) (stating that an intent “to absolve the establishment from liability based upon the acts or omissions of its professional staff … must be clearly and unequivocally expressed”).

Exculpatory clauses reside at the intersection of tort law and contract law. Under tort law, courts generally permit a party to whom a duty of care is owed to pursue damages against another for acts that breach that duty if those acts were the factual cause of the harm and within the other party’s scope of liability. See
Thompson , 774 N.W.2d at 837. But under contract law, “parties of full age and competent understanding must have the greatest freedom of contracting, and contracts, when entered into freely and voluntarily, must be upheld and enforced by the courts.” 5 Richard A. Lord, Williston on Contracts § 12:3, at 862–870 (4th ed. 2009). Not enforcing exculpatory clauses advances the interests of tort law (deterring unsafe conduct and compensating accident victims) but abridges parties’ power to contract; enforcing exculpatory clauses advances the parties’ power to contract but abridges tort remedies.

Courts attempt to strike a balance by not enforcing exculpatory contracts that contravene public policy. See
Wunschel L. Firm, P.C. v. Clabaugh , 291 N.W.2d 331, 335 (Iowa 1980). Admittedly, courts have struggled to articulate a predictable framework for parties to anticipate which agreements will contravene public policy in a future given case and which will not. We have stated in general terms that courts should not enforce a contract that “tends to be injurious to the public or contrary to the public good.” Walker v. Am. Fam. Mut. Ins. , 340 N.W.2d 599, 601 (Iowa 1983). Yet declaring contracts unenforceable as violating public policy “is a delicate power which ‘should be exercised only in cases free from doubt.’ ” Wunschel L. Firm, P.C. , 291 N.W.2d at 335 (quoting Richmond v. Dubuque & Sioux City R.R. , 26 Iowa 191, 202 (1868) ). We will not “curtail the liberty to contract by enabling parties to escape their valid contractual obligation on the ground of public policy unless the preservation of the general public welfare imperatively so demands.” Walker , 340 N.W.2d at 601 (quoting Tschirgi v. Merchs. Nat’l Bank of Cedar Rapids , 253 Iowa 682, 690, 113 N.W.2d 226, 231 (1962) ); see also
Robinson v. Allied Prop. & Cas. Ins. , 816 N.W.2d 398, 408 (Iowa 2012) (” ‘[T]here is a certain danger in too freely invalidating private contracts on the basis of public policy.’ … To do so ‘is to mount “a very unruly horse, and when you once get astride it, you never know where it will carry you.” ‘ ” (alteration in original) (first quoting Skyline Harvestore Sys., Inc. v. Centennial Ins. , 331 N.W.2d 106, 109 (Iowa 1983) ) (second quoting Grinnell Mut. Reins. v. Jungling , 654 N.W.2d 530, 540 (Iowa 2002) )). And yet, in Galloway v. State , we held that “public policy precludes enforcement of a parent’s preinjury waiver of her child’s cause of action for [negligently inflicted] injuries” on an educational field trip. 790 N.W.2d 252, 253, 256, 258 (Iowa 2010). But see
Kelly v. United States , 809 F. Supp. 2d 429, 437 (E.D.N.C. 2011) (anticipating that the North Carolina Supreme Court would enforce the parent’s liability waiver for fifteen-year-old’s high school enrichment program and describing Galloway as an “outlier”).

Lukken argues that we should not enforce an exculpatory clause against him that purports to release claims of “any and all acts of negligence” as contrary to public policy to the extent it includes claims of gross negligence. While we have never provided an all-encompassing framework for analyzing public-policy exceptions, in Baker v. Stewarts’ Inc. , we recited several factors that might be considered to determine whether a contract implicated a public interest. See 433 N.W.2d at 708. The district court in this case found that one of these factors—whether “the party seeking exculpation performs a service of great importance to the public which is of practical necessity for at least some members of the public,” id. —cut sharply against a finding that zip lining implicated a sufficient public interest to warrant interference with the parties’ contract. The district court noted that the Iowa Court of Appeals in an unpublished opinion determined that snow sledding was a “purely recreational activity” and thus not a service of great importance or necessity to the public to justify applying the public-policy exception. Lathrop v. Century, Inc. , No. 01-1058, 2002 WL 31425215, at *3 (Iowa Ct. App. Oct. 30, 2002).

But this focus somewhat misconstrues Lukken’s argument. Lukken’s focus isn’t on whether Mt. Crescent may enforce an exculpatory clause for voluntary recreational activities (under Iowa law, it may), but whether Mt. Crescent may enforce an exculpatory clause that negates claims for more culpable conduct. Lukken argues that the district court’s ruling overlooks the differences between “ordinary” negligence and “gross” negligence, and thus overlooks the public-policy implications associated with the differences in the culpability of the conduct that he alleges.

In his summary judgment and appeal briefing, Lukken contends that gross negligence includes “wanton” conduct based on its description in Iowa Code section 85.20. That statute describes gross negligence as conduct “amounting to such lack of care as to amount to wanton neglect.” Iowa Code § 85.20(2) (2018); see also
Thompson v. Bohlken , 312 N.W.2d 501, 504 (Iowa 1981) (en banc). Lukken recites cases that define gross negligence similar to wanton conduct (and wanton conduct’s close sibling, reckless conduct) as a basis for refusing to enforce contracts that include exculpatory clauses for gross negligence. Yet Lukken’s argument—that his gross negligence claim includes wanton or reckless conduct—glosses over a distinction in our cases between our common law conception of gross negligence and different statutory renderings of gross negligence.

“Gross negligence” is not a distinct cause of action under our common law, but instead is a measure of conduct in a cause of action for negligence. Unertl v. Bezanson , 414 N.W.2d 321, 326–27 (Iowa 1987) (en banc). “In this state, as is well known, the actionable character of negligence is not dependent upon its ‘degree,’ and the ancient differentiation into ‘gross,’ ‘ordinary,’ and ‘slight’ has come to mean little more than a matter of comparative emphasis in the discussion of testimony.” Denny v. Chi., R.I. & P. Ry. , 150 Iowa 460, 464–65, 130 N.W. 363, 364 (1911). Under our common law “there are no degrees of care or of negligence in Iowa,” Tisserat v. Peters , 251 Iowa 250, 252, 99 N.W.2d 924, 925–26 (1959), and we thus do not recognize a tort cause of action based on “gross” negligence as distinct from “ordinary” negligence. Hendricks v. Broderick , 284 N.W.2d 209, 214 (Iowa 1979).

Yet analysis of “gross negligence” appears frequently in our cases interpreting statutes that employ the term. See, e.g. , Thompson , 312 N.W.2d at 504 (interpreting the meaning of “gross negligence” in section 85.20 ); Sechler v. State , 340 N.W.2d 759, 761 (Iowa 1983) (en banc) (interpreting the meaning of “gross negligence” in section 306.41). In Thompson v. Bohlken , for instance, we analyzed the term “gross negligence” in section 85.20, which the statute describes as conduct “amounting to such lack of care as to amount to wanton neglect.” 312 N.W.2d at 504 (quoting Iowa Code § 85.20 (1977)). We determined that the term “gross negligence” under this statute included elements requiring proof of the defendant’s knowledge of the danger, the defendant’s knowledge that injury is probable (not merely possible) to result from the danger, and the defendant’s conscious failure to avoid the danger. Id. at 505. These elements generally track the definition of recklessness in the Restatement (Second) of Torts. See
Leonard ex rel. Meyer v. Behrens , 601 N.W.2d 76, 80 (Iowa 1999) (per curiam) (relying on the definition of “recklessness” in the Restatement (Second) of Torts § 500, at 587 (Am. L. Inst. 1965) ).

But we have warned that conceptions of “gross negligence” deriving from statutory uses of that term are not to be applied beyond those statutes. In Sechler v. State , a case tried before Iowa’s adoption of comparative negligence, we defined gross negligence for purposes of Iowa Code section 306.41 (1983) as not to include wanton neglect. 340 N.W.2d at 761. We later stated that, “[f]ar from creating a new basis of liability, the ‘gross negligence’ discussed in Thompson was a restriction, not an expansion, of the scope of negligence suits.” Unertl , 414 N.W.2d at 327. The notion of gross negligence as including “wanton” conduct under section 85.20 thus is “a concept limited by its terms to workers’ compensation cases.” Id. at 326–27.

As a result, Lukken’s argument that common law gross negligence incorporates wanton or reckless conduct based on the description in section 85.20 doesn’t square with our cases. The district court, reciting our cases stating that gross negligence is simply another degree of ordinary negligence, determined that the exculpatory clause releasing “any and all negligence” likewise released Lukken’s gross negligence claims, and thus dismissed Lukken’s claims against Mt. Crescent.

Lukken’s confusion about how reckless or wanton conduct falls within the scope of gross negligence doesn’t end the analysis in this case, however, because Lukken in his petition alleged that Mt. Crescent engaged in not only negligent conduct but also willful, wanton, and reckless conduct. We have long recognized separate grounds for tort liability based on these more culpable types of conduct. See, e.g. , Leonard ex rel. Meyer , 601 N.W.2d at 80 (recognizing a cause of action in tort for reckless disregard for safety); see also
Hendricks , 284 N.W.2d at 214 (analyzing alleged reckless conduct separate from negligence).

Both the Restatements of Contracts and Torts disfavor exculpatory clauses that attempt to limit liability for harm caused recklessly or intentionally. Restatement (Second) of Contracts § 195(1), at 65 (Am. L. Inst. 1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.”); Restatement (Third) of Torts: Apportionment of Liab. § 2 cmt. d , at 20 (Am. L. Inst. 2000) (stating that generally “contracts absolving a party from intentional or reckless conduct are disfavored”).

The Restatement (Second) of Torts notes that “[i]n the construction of statutes which specifically refer to gross negligence, that phrase is sometimes construed as equivalent to reckless disregard” of the interest of others. Restatement (Second) of Torts § 282 cmt. e , special n. 5, at 11. And so it has been in Iowa. Wanton conduct “involves the combination of attitudes: a realization of imminent danger, coupled with a reckless disregard or lack of concern for the probable consequences of the act.” Thompson , 312 N.W.2d at 505. While willfulness is “characterized by intent to injure,” wantonness is characterized by “indifference as to whether the act will injure another.” Id. (citing 57 Am. Jur. 2d Negligence § 102, at 452–53 (1971) ).

Many courts have considered in the same classification the concepts of wantonness, recklessness, and willfulness in declaring liability waivers unenforceable to the extent they seek to release such conduct. See, e.g. , Wolfgang v. Mid-Am. Motorsports, Inc. , 898 F. Supp. 783, 788 (D. Kan. 1995) (recognizing that under Kansas common law “any attempt to limit liability for gross negligence or willful and wanton conduct is unenforceable”); Moore v. Waller , 930 A.2d 176, 179 (D.C. 2007) (recognizing that courts generally don’t enforce exculpatory clauses limiting a party’s liability for “gross negligence, recklessness or intentional torts” (quoting Carleton v. Winter , 901 A.2d 174, 181 (D.C. 2006) )); Jones v. Dressel , 623 P.2d 370, 376 (Colo. 1981) (en banc) (holding that “in no event will such an [exculpatory] agreement provide a shield against a claim for willful and wanton negligence”); Brady v. Glosson , 87 Ga.App. 476, 74 S.E.2d 253, 255–56 (1953) (holding an exculpatory clause unenforceable to relieve liability for willful or wanton conduct); Wolf v. Ford , 335 Md. 525, 644 A.2d 522, 525 (1994) (stating that “a party will not be permitted to excuse its liability for … the more extreme forms of negligence, i.e., reckless, wanton, or gross”); Anderson v. McOskar Enters., Inc. , 712 N.W.2d 796, 801 (Minn. Ct. App. 2006) (stating that “any ‘term’ in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable” (quoting Wolfgang , 898 F. Supp. at 788 )); New Light Co. v. Wells Fargo Alarm Servs. , 247 Neb. 57, 525 N.W.2d 25, 30 (1994) (holding that public policy prevents parties from limiting damages for “gross negligence or willful and wanton misconduct”). We conclude that, consistent with the great weight of authority, exculpatory clauses purporting to negate liability for acts that are wantonly or recklessly committed generally violate public policy.

We therefore hold that the contractual waiver limiting Mt. Crescent’s liability is unenforceable to the extent it purports to eliminate liability for the willful, wanton, or reckless conduct that Lukken has alleged. To the extent Lukken’s claims against Mt. Crescent involve culpability that constitutes only negligent conduct (regardless of any degree of negligence), his claims fail as a matter of law based on the liability waiver. Yet Lukken maintains the opportunity, notwithstanding the liability waiver, to pursue against Mt. Crescent his claims of willful, wanton, or reckless conduct.

We reverse the district court’s summary judgment ruling as to Mt. Crescent and, in light of this determination, need not address the plaintiff’s other arguments concerning the claims against Mt. Crescent in this appeal. We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Appel, J., who concurs specially.

APPEL, Justice (concurring specially).

I cannot join the majority’s overbroad duty analysis suggesting that because of lack of control, duty invariably evaporates. If the zip line was negligently constructed by Challenge Quest and a patron was injured as a result of the negligent design, a potential claim by the injured patron would not be defeated by a lack of duty. As noted by comment g of the Restatement (Third), section 49, a contractor no longer in possession “is subject to a duty of reasonable care as provided in § 7 for any risk created by the contractor in the course of its work.” 2 Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 49 cmt. g , at 235 (Am. L. Inst. 2012). See generally
McCormick v. Nikkel & Assocs., Inc. , 819 N.W.2d 368, 377–83 (Iowa 2012) (Hecht, J., concurring in part and dissenting in part) (describing the duty of care for contractors after relinquishing possession of land). The analysis after a contractor is no longer in control of the premises concerns the fact-based questions of whether the risk was within the scope of liability and causation, not the legal question of duty. See generally
Morris v. Legends Fieldhouse Bar and Grill, LLC, 958 N.W.2d 817, 828–42 (Iowa 2021) (Appel, J., dissenting) (describing the proper analysis in most negligence cases rests with the fact questions of breach of duty and causation).

Generally, of course, these fact questions are not amenable to summary judgment. See
Thompson v. Kaczinski , 774 N.W.2d 829, 832 (Iowa 2009). But here, causation is not present with respect to the design of the braking system itself as the allegedly defective Challenge Quest system was entirely replaced by another independent vendor. To the extent there was an equipment defect in the braking system (i.e. not having an emergency brake), it was the defect in the new braking system, and not the original braking system, that caused the accident. And, the plaintiff showed no linkage between the unfortunate accident and the nebulous and allegedly insufficient training and safety policies, or the accident and the newly installed braking system (with a fundamentally different design from the original Challenge Quest system). So I concur in the district court’s conclusion that any claim against Challenge Quest fails. But this is an oddball case tightly controlled by its facts that should not be decided based on the legal principles of duty.

I concur in the majority’s holding with respect to the waiver of claims sounding in gross negligence.


Release upheld to stop claims for injuries sustained on a high rope’s course.

Plaintiff’s arguments failed because Colorado is supportive of releases.

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

State: Colorado, US District Court for the District of Colorado

Plaintiff: Jodi Sheldon

Defendant: Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene, d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center, Cross Bearing Adventures, LLC, Kent Fielden Mcilhany, an individual, and John Doe Corporations 1-10, Defendants

Plaintiff Claims: Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

Defendant Defenses: Release

Holding: For the Defendant

Year: 2020

Summary

The plaintiff signed a release to go to a Church retreat prior to attending the retreat. At the retreat, she was injured on a ropes or challenge course. She sued the retreat, the church and the builder of the course and lost because of the release she had signed.

Facts

The facts in this case are sparse.

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”).

Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

The defendants claim the plaintiff’s claims are barred by the release she signed.

Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course.

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

The court started its analysis of the case by reviewing case law on releases.

Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Thus, although such agreements are generally disfavored, and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,”

The court then reviewed the four factors that affect the validity of a release under Colorado law.

Colorado courts have identified four factors which inform the decision whether to enforce an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.”

If a release meets any of the four factors, then under Colorado law, the release is unenforceable. The first two factors can be ignored because the activities were recreational in nature. Colorado courts have long held that there is no public policy or necessity in recreational cases.

The same applies to the third test, because the services offered were recreational in nature, the third test does not apply.

Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.”

Consequently, under Colorado law only the fourth test can be used to show a release should be void in a recreational case. This test is a simple legal test, is the release written properly and does it convey to the possible plaintiff the intention of the document.

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.”

The plaintiff argued the language of the release did not cover the risks of a high rope’s course. However, the court found the language did cover the risks; the language was broad enough in scope to cover the risks and injury the plaintiff incurred.

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity, her argument fails.

Colorado is extremely lenient on the language allows to prevent a claim.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered. Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.”

The language was interpreted to be broad enough to protect the builder of the course, also.

Relatedly, the Waiver also clearly bars Ms. Sheldon’s claims against CBA. “A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract.”

The plaintiff also argued the waiver lacked consideration because of the lapse in time between when she signed the release and when her injury occurred. The court did not agree.

The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration.

Consideration is a benefit flowing from one party to the other. Every contract must have consideration. In 99% of the contracts, consideration is defined as money, an amount. The other side of the contract in consideration for money exchanges or provides services or products. In this case the exchange was a fee, money, paid by the plaintiff in exchange for a service, the ropes course, for the fee paid by the defendant.

The Plaintiff then argued the release should be void because of mutual mistake. That argument failed because the plaintiff could not show where there was any issue that was not clearly covered in the release. If a release is written with clarity and signed, their argument of mutual mistake is nearly impossible to prove.

The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.”

The mutual mistake argument was then expanded by the plaintiff to say because the state had no licensed the high ropes course, then the release should be void by mutual mistake.

Mutual mistake in a contract means both parties to the contract made the same mistake in the contract unenforceable or such that neither party wants to enforce the contract. Normally in a mutual mistake claim, the court re-writes the contract to meet the terms needed to eliminate the mutual mistake.

The state of Colorado does not license ropes course.

For one thing, it is not clear that Ms. Sheldon’s asserted mistake – that Golden Bell’s high ropes course had been licensed by the state of Colorado – was sufficiently similar to Golden Bell’s mistake – that it did not require such a license – to warrant application of the doctrine at all. Assuming arguendo that it does, however, the doctrine of mutual mistake permits reformation of the contract “where both parties’ understanding of their agreement is contrary to the terms of a written instrument due to a drafting error[.]”(“A mutual mistake claim requires a showing that both parties were laboring under the same erroneous conception of the contract’s terms and conditions.”) (doctrine of mutual mistake applies only to mistakes going to a “basic assumption” underlying the contract)

The plaintiff claimed the mutual mistake was the ropes course was not licensed. There was a mistake that because the course was unlicensed, the contract was not correct, there was a mistake.

There could not be a mutual mistake because no term in the contract, the release, required that one party have the rope’s course licensed. Meaning, a mutual mistake is not a legal theory that brings in outside issues into the analysis of the contract. A mutual mistake is something that was not understood within the contract.

The plaintiff then argued there was a unilateral mistake that should void the release.

[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.

However, there was nothing in the contract, the release or the evidence that could be identified as one party engaging in fraud or inequitable conduct.

None of these circumstances pertains here. It cannot be unconscionable to enforce an exculpatory contract which, like this one, is enforceable under Colorado law. Moreover, there is no hint in the record that Golden Bell knew or had reason to know that Ms. Sheldon did not know its high ropes course was not licensed by the state. Nor is there evidence to suggest Golden Bell was required to make its licensing status known to participants or that it purposefully hid its licensing status from Ms. Sheldon.

The release was upheld to prevent the claims brought against all three defendants.

So Now What?

Release law is written by poor releases. My releases never go to court because they are written to cover the issues like this. The Socratic method used in law school to learn still applies when practicing law, you learn from failure not success.

Here the release squeaked through, because of the breath of the case law in Colorado supporting releases. In other states, this release would fail.

Have your release written by an attorney who understands release law and understands what you do so you do not become a learning opportunity for the rest of your industry.

The remaining arguments made by the plaintiff were without any merit, and I write about them just as additional caution and to understand what those arguments really mean.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

JODI SHELDON, Plaintiff,
v.
GOLDEN BELL RETREAT d/b/a THE COLORADO DISTRICT CHURCH OF THE NAZARENE,
d/b/a GOLDEN BELL RANCH and GOLDEN BELL CAMP and CONFERENCE CENTER,
CROSS BEARING ADVENTURES, LLC, KENT FIELDEN MCILHANY, an individual,
and JOHN DOE CORPORATIONS 1-10, Defendants.

Civil Action No. 19-cv-01371-REB-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

April 20, 2020

Judge Robert E. Blackburn

ORDER GRANTING SUMMARY JUDGMENT

Blackburn, J.

The matters before me are (1) the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42],1 filed January 21, 2020; and (2) Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020. I grant both motions and dismiss plaintiff’s remaining claims with prejudice as against the named defendants and without prejudice as against the Doe defendants.

I. JURISDICTION

I have jurisdiction over this matter under 28 U.S.C. §1332 (diversity of citizenship).

II. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine factual dispute. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).

III. ANALYSIS

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”). Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany.2

All three defendants claim Ms. Sheldon’s claims are barred by a Waiver, Release and Indemnification Agreement (the “Waiver”) which she signed on May 18, 2018, prior to participating in the high ropes course. The Waiver provided, in relevant part,

I wish to participate in recreational activities to be made available to participants at Golden Bell Camp including activities that may be hazardous or otherwise involve a risk of physical injury or death to the participants (the”Activities”).

I expressly assume any and all risks of injury or death arising from or relating to the Activities including horseback riding, agricultural recreation and waive and release any and all actions, claims, suits or demands of any kind or nature whatsoever against Golden Bell Camp, its corporate affiliates, contractors, vendors, officer, agents, sponsors, volunteers or representatives of any kind (collectively “Releases”) arising from or relating in any way to my voluntary participation in these activities. I understand that this Waiver, Release and Indemnification agreement means, among other things, that if I am injured or die as a result of my participation in these activities, I and/or my family or heirs cannot under any circumstances sue Releases or any of them for damages relating to or caused by my injuries or death.

. . .

I agree to indemnify Releases or any of them and their subrogees, if any, in the event of any loss, damage or claim arising from or relating in any way to my participation in any of the Activities.

. . . .

I have read this Waiver, Release and Indemnification Agreement, have asked and received answers to any questions I had concerning its meaning and execute it freely, without duress, and in full complete understanding of its legal effect, and of the fact that it may affect my legal rights.

(CBA Motion App., Exh. C, Attachment 2.) Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course. (Id., Exh. C, Attachment 1 at 25-26.)

To begin, Ms. Sheldon does not oppose Mr. McIlhany’s motion to dismiss her claims against him personally. The uncontested evidence supports Mr. McIlhany’s assertion that all actions taken by him of which Ms. Sheldon complains were done in his capacity as a member, manager, and operator of CBA and that he never performed any services for Golden Bell in his individual capacity. Ms. Sheldon’s claims against Mr. McIlhany therefore will be dismissed with prejudice.

As for Ms. Sheldon’s claims against Golden Bell and CBA, they are precluded by the Waiver.4 Because this case implicates the court’s diversity jurisdiction, I apply Colorado law. Wade v. EMASCO Insurance Co., 483 F.3d 657, 665-66 (10th Cir. 2007). Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Thus, although such agreements are generally disfavored, see B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010), “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016).

Colorado courts have identified four factors which inform the decision whether to enforce an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1250 (10t Cir. 2018) (quoting Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981)) (internal quotation marks omitted).

The first two Jones factors focus on public policy questions – asking whether the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity. Meanwhile, the latter two factors focus on more party – and contract-specific questions – asking whether the release was fairly obtained and clearly and unambiguously expressed.

Patterson v. Powder Monarch, LLC, 926 F.3d 633, 639 (10th Cir. 2019) (internal citations and quotation marks omitted). “[I]f an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable.” Brigance, 883 F.3d at 1250. The determination of this question is a matter of law for the court. Jones, 623 P.2d at 376. See also Johnson v. Gold’s Gym Rockies, LLC, 2019 WL 1112374 at *3 (D. Colo. March 11, 2019).

The first two factors are generally inapplicable to businesses engaged in recreational activities, Patterson, 926 F.3d at 639; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004), and the parties do not argue otherwise. See also Brigance, 883 F.3d at 1250-51, 1252-53 (citing cases). Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.” Brigance, 883 F.3d at 1253 (quoting Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 949-50 (Colo. App. 2011)).

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785.

To determine whether the intent of the parties is clearly and unambiguously expressed, [Colorado courts] have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. [They] have even taken into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision.

Chadwick, 100 P.3d at 467 (internal citations omitted).

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity,5 her argument fails.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered.6 Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.” Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867, 873 (10th Cir. 2013). Read in context, and considering not only its structure and language but also its purpose, the Waiver clearly and unambiguously applies to activities such as the high ropes course. See Patterson, 926 F.3d at 642. In this regard, Ms. Sheldon testified that prior to signing up for the high ropes course, she reviewed a list of activities offered by Golden Bell which, in addition to the high ropes course, also included “horseback riding,” an activity specifically referenced in and covered by the Waiver. (CBA Motion App., Exh. C, Attachment 1 at 25.) Moreover, nothing in the record suggests Ms. Sheldon would have been asked to sign a Waiver had she not requested to participate in the high ropes course. Given those circumstances, it “strains logic,” Squires, 715 F.3d at 874, to suggest Ms. Sheldon was confused or misled as to the fact that she was being asked to waive potential claims of negligence associated with the high ropes course. See also Hamill, 262 P.3d at 952 (exculpatory waiver enforceable against parent who signed on behalf of minor child where parent knew activities that were offered at camp; “An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement . . . based on ambiguities not readily apparent within the four corners of the agreement.”).7

Relatedly, the Waiver also clearly bars Ms. Sheldon’s claims against CBA. “A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract.” E.B. Roberts Const. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo. 1985). The Waiver specifically protects Golden Bell’s “contractors” and “vendors” from claims “arising from or relating in any way to [Ms. Sheldon’s] voluntary participation in these activities.” (CBA Motion App., Exh. C, Attachment 2.) Clearly, the Waiver was intended to cover parties like CBA in precisely the situation presented by this lawsuit. Moreover, the benefit thus conferred is directly related to its purpose – to absolve such parties from liability for claims of negligence.

Ms. Sheldon’s suggestion that the Wavier is ambiguous as to whether contractors and vendors are covered for all purposes or only when they are on site is meritless. The Waiver plainly is intended to have the broadest possible scope, applying to claims “arising from or relating in any way” to Ms. Sheldon’s participation in the covered activities. Clearly, the parties intended to absolve contractors from claims they were negligent in any way in relation to the subject activities, regardless whether that negligence happened on site at the time of the event. I thus find and conclude that the Waiver clearly and unambiguously bars Ms. Sheldon’s claims against CBA as well.

Ms. Sheldon’s remaining arguments attempting to avoid the effect of the Waiver are likewise unavailing. The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration. See Patterson, 926 F.3d at 638 (“[E]ven aside from the question of timing, we are persuaded based on the nature and circumstances of the transaction that the payment and exculpatory agreement here . . . are better viewed as part of the same transaction, rather than as a subsequent contract modification.”) (citing Mincin, 308 F.3d at 1109).8

I am similarly unpersuaded by Ms. Sheldon’s suggestion that the Waiver fails due to either unilateral or mutual mistake. The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (citation and internal quotation marks omitted). Ms. Sheldon has failed to prove by clear and convincing evidence that such is the case here. Cabs, Inc. v. Hartford Insurance Group, 151 Fed. Appx. 604, 610 (10th Cir. Aug. 31, 2005); Maryland Casualty Co. v. Buckeye Gas Products Co., 797 P.2d 11, 13 (Colo. 1990).

For one thing, it is not clear that Ms. Sheldon’s asserted mistake – that Golden Bell’s high ropes course had been licensed by the state of Colorado – was sufficiently similar to Golden Bell’s mistake – that it did not require such a license – to warrant application of the doctrine at all.9 Assuming arguendo that it does, however, the doctrine of mutual mistake permits reformation of the contract “where both parties’ understanding of their agreement is contrary to the terms of a written instrument due to a drafting error[.]” Tatonka Capital Corp. v. Connelly, 390 F.Supp.3d 1289, 1294 (D. Colo. 2019), as modified on reconsideration, 2019 WL 5535226 (D. Colo. Oct. 25, 2019), appeal filed, 2019 WL 5535226 (10th Cir. Nov. 25, 2019) (No. 19-1450). See also Casey v. Colorado Higher Education Insurance Benefits Alliance Trust, 310 P.3d 196, 207 (Colo. App. 2012) (“A mutual mistake claim requires a showing that both parties were laboring under the same erroneous conception of the contract’s terms and conditions.”) See also Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust, 361 P.3d 1063, 1066-67 (Colo. App. 2015) (doctrine of mutual mistake applies only to mistakes going to a “basic assumption” underlying the contract).10

No term of the contract here addressed whether Golden Bell had, or was required to have, a state-issued license. Thus, any mistake as to that fact “did not create any ambiguity regarding the terms or substance of the [Waiver].” Shoels v. Klebold, 375 F.3d 1054, 1067 (10th Cir. 2004), cert. denied, 125 S.Ct. 1302 (2005). The Colorado Supreme Court long ago warned that courts “should not sanction, under the guise of reformation, the insertion in [contracts] of a new term or provision which was never even in the minds of the parties, let alone assented to by them.” Segelke v. Kilmer, 360 P.2d 423, 427 (Colo. 1961). “To order reformation under these circumstances is to rewrite, not to reform, the instruments.” Id. Just so here. I thus find the Waiver is not infirm based on mutual mistake.

I likewise reject Ms. Sheldon’s suggestion that she may avoid the waiver’s effect under the doctrine of unilateral mistake. “[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Tatonka Capital Corp., 390 F.Supp.3d at 1299. Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.” Poly Trucking, Inc. v. Concentra Health Service., Inc., 93 P.3d 561, 563 (Colo. App. 2004). See also RESTATEMENT (SECOND) OF CONTRACTS § 153 (contract may be avoided based on unilateral mistake where “(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake”); Shoels, 375 F.3d at 1068 (quoting Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356, 364 (Colo.1988) (“[E]quity will not allow a party to knowingly take advantage of a mistake of another.”)).

None of these circumstances pertains here. It cannot be unconscionable to enforce an exculpatory contract which, like this one, is enforceable under Colorado law. Moreover, there is no hint in the record that Golden Bell knew or had reason to know that Ms. Sheldon did not know its high ropes course was not licensed by the state. Nor is there evidence to suggest Golden Bell was required to make its licensing status known to participants or that it purposefully hid its licensing status from Ms. Sheldon. At best, the evidence suggests Golden Bell’s website made it appear the camp’s activities were open to the general public, which if true would have rendered them subject to inspection and licensing by the state.11 Yet there is neither argument nor evidence that Ms. Sheldon even consulted, much less relied on, Golden Bell’s website in deciding to participate in the high ropes course or sign the Waiver.12 I thus find and conclude that the Waiver is not voidable based on unilateral mistake either.

IV. CONCLUSION

For these reasons, the named defendants are entitled to summary judgment, and Ms. Sheldon’s remaining claims against them will be dismissed with prejudice. Although the caption of this case named a number of unknown John Doe defendant corporations who may have had “ownership and control of the subject obstacle activity (Complaint ¶ 10 at 3 [#1], filed May 13, 2019), with discovery now closed, Ms. Sheldon has not identified any such entities. These defendants therefore also should be dismissed, albeit without prejudice.13
See Culp v. Williams, 2011 WL 1597686 at *3 (D. Colo. April 27, 2011) (because Doe designation is not permitted where “plaintiff’s ignorance of the defendant’s true identity is the result of willful ignorance or lack of reasonable inquiry,” Doe defendants dismissed where case had been pending for more than a year and plaintiff failed to show “good reason as to why [it] ha[d] been unable to obtain the true identity of these unnamed Defendants”).

V. ORDERS

THEREFORE, IT IS ORDERED as follows:

1. That the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42], filed January 21, 2020, is granted;

2. That Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020, is granted;

3. That plaintiff’s remaining claims against defendants are dismissed as follows:

a. That the remaining claims of plaintiff against defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; Kent Fielden McIlhany, an individual, are dismissed with prejudice; and

b. That the remaining claims of plaintiff against defendants, John Doe Corporations 1 through 10 are dismissed without prejudice;

4. That judgment shall enter as follows:

a. That judgment with prejudice shall enter on behalf of defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; and Kent Fielden McIlhany, an individual, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

b. That judgment without prejudice shall enter on behalf of defendants, John Doe Corporations 1 through 10, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

5. That judgment shall enter further in accordance with my Order Adopting Recommendation of United States Magistrate Judge [#35], filed January 8, 2020;

6. That the combined Final Pretrial Conference and Trial Preparation Conference scheduled for June 11, 2020, at 10:00 a.m., is vacated;

7. That the trial scheduled to commence on June 29, 2020, is vacated;

8. That defendants are awarded their costs, to be taxed by the clerk in the time and manner required by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and

9. That this case is closed.

Dated April 20, 2020, at Denver, Colorado.

BY THE COURT:

/s/_________
Robert E. Blackburn
United States District Judge

——–

Footnotes:

1. “[#42]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

2. Ms. Sheldon’s claims of negligence and fraudulent concealment against Golden Bell were dismissed previously as preempted by the PLA. (See Order Adopting Recommendation of the United States Magistrate Judge [#35], filed January 8, 2020.)

3. Ms. Sheldon, who is a resident of Illinois, attended Golden Bell as part of a large family reunion.

4. I reject Ms. Sheldon’s suggestion that I should defer ruling on this motion until after Golden Bell’s Rule 30(b)(6) deposition is completed. Pursuant to Rule 56(d), to warrant such action, Ms. Sheldon must “show[] by affidavit or declaration that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.” FED. R. CIV. P. 56(d). No such affidavit or declaration has been submitted in support of Ms. Sheldon’s request. The request also violates D.C.COLO.LCivR 7.1(d), which provides that “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” I therefore deny this request and consider the summary judgment motions as submitted.

5. Frankly, however, this argument strains credulity. I would be hard pressed to find that it is not inherently risky to be suspended many feet above the ground, regardless of safety measures taken to mitigate the risk. Moreover, Ms. Sheldon’s subjective belief that the ropes course was not inherently dangerous is irrelevant. See Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 n.1 (10t Cir. 1997) (“Plaintiffs’ subjective intent is inadmissible to overcome the parties overt manifestation of intent in the releases because the language in these agreements is clear and unambiguous.”) (citation and internal quotation marks omitted).

6. Ms. Sheldon’s reliance on the district court’s decision in Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 132 F.Supp.3d 1310 (D. Colo. 2015), is misplaced. There, although the agreement at issue clearly and unambiguously released the defendant from claims related to the plaintiff’s participation in “the Event” (a ski race), it was not clear that it covered injuries the plaintiff sustained after she finished competing in that event. See id. at 1315. There is no such ambiguity here. Ms. Sheldon was injured while participating in the “activities” which were the subject of the Waiver.

7. I further reject Ms. Sheldon’s argument that her claim of gross negligence against Golden Bell cannot be waived. Assuming such is the case as a matter of law, as a matter of fact, Ms. Sheldon failed to plead such a claim.

8. In reaching its determination, the Mincin court relied on two state court decisions which reached similar conclusions. See Mincin, 308 F.3d at 1109 (citing Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. Ct. App.2001) (“This court has held that an exculpatory agreement signed after a fee to participate in a recreational activity has been paid is part of the same transaction and is therefore enforceable without additional consideration other than permission to participate in the activity.”), and Hewitt v. Miller, 521 P.2d 244, 248 n.3 (Wash. App. 1974) (concluding that release signed by scuba diving student after payment of fee was an integrated part of the whole transaction and was thus supported by original consideration)).

9. At the time Ms. Sheldon participated in the high ropes course, the course was not licensed by the Colorado Division of Oil and Public Safety (“OPS”) because Golden Bell believed itself subject to a “private event” exception, as its activities were available only to persons staying at the camp or its associated RV park and not open to the general public. However, because Golden Bell charged a separate fee for participation in activities at the camp to groups making use of the RV park, OPS found Golden Bell was not entitled to the benefit of this exclusion. Golden Bell resolved the violation by changing the way in which it offers its activities to guests of the RV park. OPS waived the fine assessed and considered the matter resolved as of August 23, 2019. (See Pl. Resp. App. [#52], Exh. J, Golden Bell Motion App., Exhs. A & B.)

10. Even where the doctrine of mutual mistake is otherwise applicable, however, a party is not entitled to reformation where she was “‘aware, at the time the contract is made, that [she] ha[d] only limited knowledge with respect to the facts to which the mistake relates but treat[ed] [her] limited knowledge as sufficient.'” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 154(b)). Such is arguably the case here as well.

11.
See supra, note 6.

12. These same reasons preclude Ms. Sheldon’s belated assertion that Golden Bell engaged in fraud which would invalidate the Waiver. Otherwise, this argument is so woefully undeveloped and unsupported by citation to any legal authority that I decline to consider it. See Bird v. Regents of New Mexico State University, 619 Fed. Appx. 733, 766 (10th Cir. Aug. 6, 2015) (arguments which re “conclusory, unsupported, and undeveloped” “are insufficient to overcome summary judgment “); Center for Biological Diversity v. Pizarchik, 858 F.Supp.2d 1221, 1230 n.11 (D. Colo. 2012) (court does not consider “cursory, unsupported, or otherwise inadequately briefed arguments”). To the extent Ms. Sheldon believed she required further discovery to make this argument, she has forfeited any such argument. See supra, note 4.

13. Without knowledge as to how any such corporations may be related to or associated with Golden Bell, it is impossible to say whether they would be covered by the Waiver and thus entitled to dismissal with prejudice. Cf. Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996); Bustamante v. Board of County Commissioners of San Miguel County, 2009 WL 10706928 at *5 n.7 (D.N.M. Oct. 2, 2009).

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Minnesota Appellate court upholds a release signed by a mother for a child’s injuries

Court also upheld the settlement agreement signed by the parents was valid to prohibit a claim by the minor after turning age 18

Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

State:
Minnesota, Court of Appeals of Minnesota

Plaintiff: Carter Justice

Defendant: Marvel, LLC d/b/a Pump It Up Parties

Plaintiff Claims: negligently failed to cover the landing surface of the fall zone surrounding the inflatable

Defendant Defenses: Settlement and Release

Holding: For the Defendant

Year: 2021

Summary

The plaintiff was injured as a minor at an indoor recreation facility. The parents settled with the facility at the time of the injury. When the minor reached the age of majority in Minnesota he sued the facility. The Appellate court upheld the release signed by the parent to stop the minors claims and the settlement agreement.

Facts

In February 2007, Justice attended a friend’s birthday party at an indoor amusement facility in the city of Plymouth. The facility, known as Pump It Up, was owned and operated by Marvel, L.L.C. Upon entering the facility, Justice’s mother, Michelle Sutton, was asked to sign, and did sign, a form agreement….

During the party, while playing on an inflatable obstacle course, Justice fell approximately six feet and hit his head on the carpeted floor. He was taken to a hospital, where he received treatment.

In September 2007, Sutton and her husband, Steve Sutton, who is Justice’s step-father, entered into a written agreement with Marvel. The one-page agreement states that the Suttons had incurred unreimbursed medical expenses as a result of Justice’s head injury and that Marvel agreed to pay $1,500 of those expenses. The agreement provided that, if no new medical complications arose within six months, the Suttons would “execute a full and complete release and discharge of any and all claims” against Marvel. The Suttons did not thereafter execute such a release.

In June 2018, after Justice had turned 18 years old, he commenced this action against Marvel.

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

This is the first case I’ve found in the recreation community where a minor sued upon reaching the age of majority for an injury the minor received years before. Injured minors are the lawsuits that seem to hang on forever. In some cases, you want the parents to present a claim so you can deal with it and not possible wait tent to fifteen years for the minor to turn 18 (or 19 or 21 dependent on the state See The age that minors become adults.) to sue on their own.

The defendant had two defenses. 1. The release that the mother had signed for her son at the time of the injury (pre-injury release). 2. The release the mother and father had signed at the time of the injury to settle the claim (post injury release).

The court looked at the basic issues surrounding a parents’ right to raise a child and whether this right includes the right to sign away a minor’s right to sue.

His first argument for voiding the release is also unique. After his mother signed the release, Minnesota passed a statute to regulate amusement parks like this and in the process lost the right to have a parent sign away a minor’s right to sue.

Nonetheless, the existence of a parent’s fundamental right “to make decisions concerning the care, custody, and control of his or her children,” implies that a parent has authority to act on behalf of a minor child when interacting with third parties. The United States Supreme Court has recognized as much: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. This principle is based on “a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Furthermore, the law recognizes that “natural bonds of affection lead parents to act in the best interests of their children. The Supreme Court stated in Parham that a parent’s authority to make health-care decisions on behalf of a minor child is limited only in atypical situations, such as if the parent has neglected or abused the child.

(This has been adopted by all states, yet most State Supreme Courts do not believe that a parent has the right to sign away a child’s right to sue. They can provide medical care to the child that might kill them, but they can’t allow them to be injured.)

The court then reviewed all the ways that the state of Minnesota has by statute given parents the right to control the child upbringing. The court then made this statement supporting the right of a parent to sign away the right to sue.

In light of these statutes, and in the absence of any law that either forbids parents from entering into contracts on behalf of their minor children or limits their ability to do so, it is clear that a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.

The next issue was a statute posted after the release was signed would void the release.

Three years after the plaintiff’s mother signed the release, Minnesota enacted Minn. Stat. 184B.20 Inflatable Amusement Equipment. The statute had a specific provision which voided releases signed by a parent for a minor.

Subd. 5. Insurance required; waiver of liability limited.

(b) A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.

The plaintiff argued that this statute should be used to void a release. However, a basic tenet of the law is “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Even if the legislature intends for a law to retroactive it is very rarely upheld as valid. No business could continue if at any time in the future the law could change making the action or business illegal.

The plaintiff then argued the release was void because it was “overly broad and contrary to public policy.” Minnesota law follows the law in most other states on interpreting an overly broad release and public policy issues.

“A clause exonerating a party from liability will be strictly construed against the benefited party.” “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. In addition, an exculpatory clause is unenforceable if it “contravenes public policy.”

Minnesota has a two prongs test to determine if a contract violates public policy.

The test focuses on two factors: “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision)” and “(2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).”

The plaintiff argued the release was a violation of public policy because his mother could not negotiate the release and as such he would not have been permitted to attend the birthday party if she had not signed the release. This argument might work for a real necessity, however in recreation cases it fails because the services can always be obtained elsewhere.

Justice contends that there was a disparity in bargaining power because there was no opportunity for his mother to negotiate the terms of the exculpatory clause and because he would not have been permitted to attend the birthday party if his mother had not signed the form agreement. Justice’s contention is not legally viable. “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” More is required. The agreement must relate to a “necessary service,” and there also “must be a showing … that the services could not be obtained elsewhere.”

But the supreme court has recognized that “contracts relating to recreational activities do not fall within any of the categories where the public interest is involved,” on the ground that they are not “services of great importance to the public, which were a practical necessity for some members of the public.”

The release was found to not violate public policy because:

…exculpatory clause is not contrary to public policy because there was no bargaining-power disparity and because Marvel did not provide “an essential or public service.”

The next argument was the scope of the release was too broad because the language tries to stop claims for “intentional, willful or wanton acts.” However, the release itself only referred to claims for negligence. However, this was not enough of a restriction under Minnesota law the court concluded.

Marvel’s exculpatory clause does not make any reference to claims of “ordinary negligence” or simply “negligence.” Rather, it expansively refers to “any and all claims,” which means that it purports to release Marvel from claims arising from its intentional, willful or wanton acts. Thus, Marvel’s exculpatory clause is overly broad.

The court concluded the language of the release was overly broad when it did language in the release purported to release the defendant from more than simple negligence claims. The court then examined whether this issue was enough to void the release.

The court in a prior decision, repeated here found that although the language of the release may purport to cover greater than ordinary negligence, a release under Minnesota law could only release from ordinary negligence. So, no matter what the release said or was interpreted to say, it could not protect from simple negligence claims.

We reasoned that “any term in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire contract. ” (emphasis added) (quotation and alteration omitted). In light of Anderson, Marvel’s exculpatory clause is enforceable to the extent that Justice asserts a claim of ordinary negligence, but it is unenforceable to the extent that Justice asserts a claim of greater-than-ordinary negligence.

Overly broad language, concerning the extent of the protection provided by the release, did not void the release.

Finally, the court reviewed the plaintiff’s argument that the post injury release signed by the plaintiff’s parents to settle their claims at the time of the injury was not valid. The plaintiff argued legal technical claims about the signing and validity of the release, which the court rejected.

The district court did not err by granting Marvel’s motion for summary judgment on the ground that Justice’s sole claim of ordinary negligence is barred by the exculpatory clause that his mother signed on his behalf. In light of that conclusion, Justice’s argument that the district court erred by denying his motion to amend the complaint to add a request for punitive damages is moot.

So Now What?

One of the confusing points of this case is why did the amusement industry allow Minn. Stat. 184B.20 Inflatable Amusement Equipment to be passed. It provided no protection for the industry or operators, placed a mandatory insurance requirement and worst voided the use of a release for a minor in one of the few states where a minor can have a parent sign away their rights.

The two other issues, the signing of a release by a parent to stop the claims of a child, which is not moot for inflatable amusement devices, and the concept of a minor suing after his parents have settled a claim, after reaching the age of majority are rare and decided by the court in a manner that upholds the validity of a contract.

If settlement and post injury release signed by the parents had been thrown out, this would create a nightmare of litigation. No one would settle any claim of a minor until the minor reached the age of majority since any settlement might be void. No matter how badly a parent might want to pay medical bills or move on, no insurance company would offer a payment knowing they could be sued later.

What do you think? Leave a comment.

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Minn. Stat. 184B.20 Inflatable Amusement Equipment (Minnesota Statutes (2022 Edition))

Minn. Stat. 184B.20 Inflatable Amusement Equipment (Minnesota Statutes (2022 Edition))

§ 184B.20. INFLATABLE AMUSEMENT EQUIPMENT

Subdivision 1. Definitions.

(a) For purposes of this section, the terms defined in this subdivision have the meanings given.

(b) “Commercial use” means regular use of an inflatable for profit by an owner at a permanently located facility:

(1) to which the general public is invited; or

(2) which the owner makes available at that facility for private parties or other events.

“Commercial use” does not include use of an inflatable (i) at a carnival, festival, fair, private party, or similar venue at a location other than the permanently located facility, or (ii) at a facility where the use of the inflatable is incidental to the primary use of the facility.

(c) “Inflatable” means an amusement device, used to bounce or otherwise play on, that incorporates a structural and mechanical system and employs a high-strength fabric or film that achieves its strength, shape, and stability by tensioning from internal air pressure.

(d) “Owner” means a person who owns, leases as lessee, or controls the operation of an inflatable for commercial use.

(e) “Person” has the meaning given in section 302A.011, subdivision 22.

(f) “Supervisor” means an individual stationed within close proximity to an inflatable during its use, for the purpose of supervising its safe use.

(g) “Trained” means that an individual has received instruction in how to supervise the safe use of inflatables in accordance with industry and ASTM standards.

Subd. 2. Prohibition.

No owner shall provide an inflatable for commercial use in this state by others unless the owner complies with this section.

Subd. 3. Protection against injuries from falls.

An inflatable that is in commercial use must be placed in a manner that complies with ASTM Standard F 2374.07, adopted by the American Society for Testing and Materials, including any future updates to that standard.

Subd. 4. Supervision by trained person required.

No owner of an inflatable shall allow commercial use of the inflatable unless a trained supervisor is present in close proximity to the inflatable and is actively supervising its use. The ratio of supervisors to inflatables must comply with ASTM Standard F 2374.07, as referenced under subdivision 3.

Subd. 5. Insurance required; waiver of liability limited.

(a) An owner of an inflatable that is subject to subdivision 2 shall maintain liability insurance covering liability for a death or injury resulting from commercial use of the inflatable with limits of no less than $1,000,000 per occurrence and $2,000,000 aggregate per year. The insurance shall also include medical payments coverage of no less than $5,000 per occurrence, which may be limited to injuries incurred while using an inflatable, including getting on or off of the inflatable. The insurance must be issued by an insurance company authorized to issue the coverage in this state by the commissioner of commerce, and must be kept in force during the entire period of registration. In the event of a policy cancellation, the insurer will send written notice to the commissioner of labor and industry at the same time that a cancellation request is received from or a notice is sent to the insured.

(b) A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.

Subd. 6. Registration required.

An owner of an inflatable that is subject to subdivision 2 must obtain and maintain a current registration with the commissioner of labor and industry. The registration information must include the name, address, telephone number, and e-mail address of the owner, the street address of each facility at which the owner regularly provides inflatables for commercial use in this state by others, and a current insurance certificate of coverage proving full compliance with subdivision 5. The commissioner shall issue and renew a certificate of registration only to owners who comply with this section. The commissioner shall charge a registration fee of $100 for a two-year registration designed to cover the cost of registration and enforcement. Fee receipts must be deposited in the state treasury and credited to the construction code fund. The registration certificate shall be issued and renewed for a two-year period. The registrant shall promptly notify the commissioner in writing of any changes in the registration information required in this subdivision.

Subd. 7. Enforcement.

The commissioner of labor and industry shall enforce this section and may use for that purpose section 326B.082 and any powers otherwise available to the commissioner for enforcement purposes, including suspension or revocation of the person’s registration and assessment of fines.

Source:

2010 c 347 art 3s 2


Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

965 N.W.2d 335

Carter JUSTICE, Appellant,
v.
MARVEL, LLC d/b/a Pump It Up Parties, Respondent.

A20-1318

Court of Appeals of Minnesota.

Filed July 19, 2021
Granted in part October 19, 2021

Mahesha P. Subbaraman, Subbaraman, P.L.L.C., Minneapolis, Minnesota; and Patrick W. Michenfelder, Throndset Michenfelder, L.L.C., St. Michael, Minnesota (for appellant)

Joseph A. Nilan, Daniel A. Ellerbrock, Jacob T. Merkel, Gregerson, Rosow, Johnson & Nilan, Ltd., Minneapolis, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Gaïtas, Judge.

OPINION

JOHNSON, Judge

When he was seven years old, Carter Justice attended a birthday party at a business that provided inflatable amusement equipment on which children were allowed to jump, climb, and play. Before entering the party, Justice’s mother signed a form agreement that included an exculpatory clause that released the business from any and all claims she and Justice might have based on his use of the inflatable amusement equipment. During the party, Justice fell off an inflatable obstacle course and hit his head on the floor, which caused him a head injury.

When Justice was 18 years old, he sued the business that hosted the birthday party. The district court denied Justice’s motion to amend the complaint to seek punitive damages. The district court later granted the defendant’s motion for summary judgment on the ground that the exculpatory clause signed by Justice’s mother is valid and enforceable. We conclude that the district court did not err by granting the motion for summary judgment. Therefore, we affirm.

FACTS

In February 2007, Justice attended a friend’s birthday party at an indoor amusement facility in the city of Plymouth. The facility, known as Pump It Up, was owned and operated by Marvel, L.L.C. Upon entering the facility, Justice’s mother, Michelle Sutton, was asked to sign, and did sign, a form agreement that stated as follows:

In consideration of being allowed to enter into the play area and/or participate in any party and/or program at Pump It Up of Plymouth, MN, the undersigned, on his or her own behalf, and/or on behalf of the participant(s) identified below, acknowledges, appreciates and agrees to the following conditions:

I represent that I am the parent or legal guardian of the Participant(s) named below …

….

I, for myself and the participant(s) nanied below, hereby releaseMARVEL, LLC, dba Pump It Up of Plymouthfrom and against any and all claims, injuries, liabilities or damages arising out of or related to our participation inthe use of the play area and/or inflatable equipment. (Emphasis added.)

During the party, while playing on an inflatable obstacle course, Justice fell approximately six feet and hit his head on the carpeted floor. He was taken to a hospital, where he received treatment.

In September 2007, Sutton and her husband, Steve Sutton, who is Justice’s step-father, entered into a written agreement with Marvel. The one-page agreement states that the Suttons had incurred unreimbursed medical expenses as a result of Justice’s head injury and that Marvel agreed to pay $1,500 of those expenses. The agreement provided that, if no new medical complications arose within six months, the Suttons would “execute a full and complete release and discharge of any and all claims” against Marvel. The Suttons did not thereafter execute such a release.

In June 2018, after Justice had turned 18 years old, he commenced this action against Marvel. He alleged that Marvel had “negligently failed to cover the landing surface of the fall zone surrounding the inflatable.” In March 2020, Justice moved to amend the complaint to add a request for punitive damages. In April 2020, the district court denied the motion to amend.

In May 2020, Marvel moved for summary judgment on the ground that Justice’s claim is barred by the exculpatory clause that his mother signed and, in addition, by the post-injury agreement that both of the Suttons signed. In August 2020, the district court granted the motion for summary judgment, reasoning that Justice’s claim is barred by the pre-injury exculpatory clause. Justice appeals.

ISSUE

Did the district court err by granting Marvel’s motion for summary judgment based on the exculpatory clause that Justice’s mother signed on his behalf when he was a minor child?

ANALYSIS

On appeal, Justice makes two arguments. First, he argues that the district court erred by granting Marvel’s motion for summary judgment. Second, he argues that the district court erred by denying his motion to amend the complaint to add a request for punitive damages. We begin by addressing his first argument, which is dispositive of the appeal.

A district court “shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. A genuine issue of material fact exists if a rational trier of fact, considering the record as a whole, could find for the nomnoving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court applies a de novo standard of review to the district court’s legal conclusions on summary judgment and views the evidence in the light most favorable to the party against whom summary judgment was granted. Commerce Bank v.
West Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015).

Justice argues that the district court erred on the ground that the exculpatory clause is invalid and unenforceable for five reasons. First, he argues that a pre-injury exculpatory clause releasing claims arising from the use of inflatable amusement equipment is void as a matter of law pursuant to a statute that was enacted after Justice’s mother signed Marvel’s exculpatory clause. Second, he argues that a parent does not have authority to agree to a pre-injury exculpatory clause on behalf of a minor child and that any such agreement is not binding on the child after he becomes an adult. Third, he argues that Marvel’s exculpatory clause is invalid and unenforceable because it is overly broad or arguably overbroad and in violation of public policy. Fourth, he argues that the post-injury agreement abrogated or modified the pre-injury exculpatory clause. And fifth, he argues that there is a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. We will consider each of Justice’s arguments but in a different order.

A. Parental Authority

Justice argues that a parent does not have authority to agree to a pre-injury exculpatory clause on behalf of a minor child and that any such agreement is not binding on the child after he becomes an adult.1 Neither party has cited any Minnesota caselaw that is directly on point, and we are unaware of any such caselaw.2

The district court ruled in favor of Marvel on this issue by stating that “a parent may sign a waiver on behalf of a child under the laws of Minnesota.” In support of this statement, the district court quoted the following sentence in SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007) : “A parent’s right to make decisions concerning the care, custody, and control of his or her children is a protected fundamental right.” Id. at 820 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) ). The supreme court’s statement in SooHoo was made in the context of analyzing an argument that a custodial parent of a minor child has a constitutional right to substantive due process with respect to governmental interference with the parent-child relationship. Id. There was no issue in that case concerning a parent’s authority to enter into a contract on behalf of a minor child. See
id. at 819-26.

Nonetheless, the existence of a parent’s fundamental right “to make decisions concerning the care, custody, and control of his or her children,” id. at 820, implies that a parent has authority to act on behalf of a minor child when interacting with third parties. The United States Supreme Court has recognized as much: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.” Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2505, 61 L.Ed.2d 101 (1979). This principle is based on “a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Id. at 602, 99 S. Ct. at 2504. Furthermore, the law recognizes that “natural bonds of affection lead parents to act in the best interests of their children.” Id. (citing 1 William Blackstone, Commentaries of the Law of England 447 (Legal Classics Library 1983) (1769); 2 James Kent, Commentaries on American Law 190 (1827)). The Supreme Court stated in Parham that a parent’s authority to make health-care decisions on behalf of a minor child is limited only in atypical situations, such as if the parent has neglected or abused the child. Id. at 604, 99 S. Ct. at 2505.

Several Minnesota statutes recognize by implication that a parent generally is authorized to enter into agreements with third parties on behalf of a minor child. For example, in matters related to education, the legislature has recognized that parents have authority to make binding decisions on behalf of their minor children. See, e.g., Minn.Stat. §§ 120A.22, subds. 4-5, 8, 120A.3 8, 120B.07 (2020). Similarly, in the context of medical care, the legislature has provided for only a limited number of situations in which a parent’s consent to the medical treatment of a minor child is unnecessary, thereby implying that, in all other situations, a parent’s agreement or consent is necessary. For example, a minor child “may give effective consent to personal medical, dental, mental and other health services” only if the minor child is “living separate and apart from parents or legal guardian … and is managing personal financial affairs.” Minn. Stat. § 144.341 (2020). In addition, a health-care provider may give emergency treatment to a minor child without parental consent only if “the risk to the minor’s life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.” Minn. Stat. § 144.344 (2020). Each of these statutes presupposes that a parent generally has authority to make decisions on behalf of a minor child.

The legislature’s recognition of a parent’s authority to enter into an agreement on behalf of a minor child also is reflected in two recent statutes that are especially pertinent to this case. In 2010, the legislature passed, and the governor signed, a bill to regulate inflatable amusement equipment in various ways. 2010 Minn. Laws ch. 347, art. 3, § 2, at 46 (codified at Minn. Stat. § 184B.20 (2020) ). One provision of the statute (which is discussed further below in part B) broadly prohibits exculpatory clauses with the following language: “A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.” Minn. Stat. § 184B.20, subd. 5(b) (emphasis added). The italicized language in section 184B.20 would be unnecessary unless another person—such as a parent—has authority to sign a waiver of liability on behalf of a minor child. Also, in 2013, the legislature and the governor enacted a law to, among other things, prohibit exculpatory clauses that purport to release claims of greater-than-ordinary negligence in the context of consumer services, including recreational activities. 2013 Minn. Laws ch. 118 (codified at Minn. Stat. § 604.055 (2020) ). The statute applies to agreements entered into by “a minor or another who is authorized to sign or accept the agreement on behalf of the minor. ” Minn. Stat. § 184B.20, subd. 2 (emphasis added). Again, the italicized language impliedly recognizes that, in the absence of the statute, another person—such as a parent—may be authorized to sign agreements of that type, which is the same general type of agreement as the exculpatory clause in this case.

In light of these statutes, and in the absence of any law that either forbids parents from entering into contracts on behalf of their minor children or limits their ability to do so, it is clear that a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.

Justice contends that a parent should not be permitted to bind his or her minor child to an exculpatory clause after the child becomes an adult because a minor child who independently enters into a contract may avoid the contract after reaching adulthood. See
Kelly v. Furlong, 194 Minn. 465, 261 N.W. 460, 466 (1935) ; Goodnow v. Empire Lumber Co., 31 Minn. 468, 18 N.W. 283, 284-85 (1884) ; Dixon v. Merritt, 21 Minn. 196, 200 (1875). This rule of law exists “for the protection of minors, and so that they shall not be prejudiced by acts done or obligations incurred at a time when they are not capable of determining what is for their interest to do.” Goodnow, 18 N.W. at 284. For that reason, “the law gives them an opportunity, after they have become capable of judging for themselves, to determine whether such acts or obligations are beneficial or prejudicial to them, and whether they will abide by or avoid them.” Id. at 284-85. But that rationale simply does not apply if an adult parent signed an exculpatory clause on behalf of a minor child. An adult parent is presumed to be competent to make decisions on behalf of a minor child and to act in the child’s best interest. See
Parham, 442 U.S. at 602, 99 S. Ct. at 2504. Such a parent may balance the relevant considerations and either elect to sign an exculpatory clause on behalf of a minor child and thereby obtain the benefits of doing so or elect to not sign it and thereby forego any such benefits.

Justice also contends that a parent should not be permitted to sign an exculpatory clause on behalf of a minor child before any injury occurs because a parent is not permitted to settle a pending lawsuit on behalf of a minor child after a child has been injured, unless a district court approves. Justice refers to a statute that authorizes a parent to “maintain an action for the injury of a minor son or daughter” and also provides, “No settlement or compromise of the action is valid unless it is approved by a judge of the court in which the action is pending.” Minn. Stat. § 540.08 (2020). Justice’s contention fails to recognize the differences between the two situations. Section 540.08 guards against the risk that a parent might enter into an improvident settlement that is not in the minor child’s best interests or the risk that a parent might be motivated by an intent to use settlement proceeds for improper purposes. Such risks are especially ripe after a child has been injured and a civil action has been commenced and settled. But such risks are not present and are unlikely to arise in the more common situation in which a parent is presented with an exculpatory clause and no injury has yet occurred. In that situation, there is no immediate prospect of a settlement that is contrary to a minor child’s best interests.

Justice contends further that this court held in O’Brien Entertainment Agency, Inc. v. Wolfgramm, 407 N.W.2d 463 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987), that a parent’s agreement on behalf of his minor children was unenforceable. We disagree with Justice’s interpretation of our opinion in O’Brien
. The opinion states that a father of six children signed a contract, but the opinion does not clearly state that the father signed the contract on behalf of his children. Id. at 465-66. Absent from the court’s reasoning is any statement that the father purported to enter into the contract on behalf of his children. See
id. at 466-67. We concluded that the statute of frauds barred the breach-of-contract claim against the children because none of the children signed the contract. Id. at 466. Thus, our opinion did not address the question whether a parent may enter into a contract on behalf of a minor child.

In sum, various provisions of Minnesota law recognize that a parent may enter into an agreement on behalf of a minor child. Recent statutory enactments clearly indicate that the legislature has assumed that a parent is authorized to sign an exculpatory clause—including an exculpatory clause concerning the use of inflatable amusement equipment—on behalf of a minor child. Justice has not cited any Minnesota authority for the proposition that a parent may not enter into an agreement on behalf of a minor child.

Thus, the district court did not err by reasoning that Justice’s mother was authorized to sign Marvel’s exculpatory clause on Justice’s behalf.

B. Section 184B.20

Justice also argues that section 184B.20 of the Minnesota Statutes, which was enacted in 2010, voids the exculpatory clause that his mother signed in 2007 because the statute voids all waivers of claims based on injuries caused by the use of inflatable amusement equipment.

As noted above, section 184B.20 provides, “A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.” Minn. Stat. § 184B.20, subd. 5(b). The session law that led to the codification of this statute states that the law “is effective August 1, 2010.” 2010 Minn. Laws ch. 347, art. 3, § 2, at 46. The district court rejected Justice’s argument that section 184B.20 voids Marvel’s exculpatory clause on the grounds that Justice’s mother signed the exculpatory clause before the statute’s effective date and that the legislature did not intend for the statute to apply retroactively.

” ‘No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.’ ” In re Individual 35W Bridge Litigation, 806 N.W.2d 811, 819 (Minn. 2011) (A09-1776) (hereinafter 35W Bridge (A09-1776)
) (quoting Minn. Stat. § 645.21 (2010) ). One way in which the legislature may indicate its intent for a law to operate retroactively is to use the term “retroactive.” Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn. 1985).

Justice does not argue that the legislature intended the statute to apply retroactively. Instead, he contends that the statute’s application in this case would be a prospective application, not a retroactive application. But the supreme court has stated, “A statute operates retroactively if it affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.” 35W Bridge (A09-1776), 806 N.W.2d at 819-20 (quotation omitted). If section 184B.20 were applied to this case, it would affect the parties’ respective rights and obligations concerning events—the signing of Marvel’s exculpatory clause and Justice’s head injury—that occurred more than three years before the effective date of the statute. Such an application would result in a retroactive application of the statute because it would affect rights and obligations that were pre-existing when the statute became effective. See id.

Justice attempts to avoid a retroactive characterization by relying on Tapia v. Leslie, 950 N.W.2d 59 (Minn. 2020), in which the supreme court concluded that a 2014 statutory amendment governed a 2017 application for a permit to carry a pistol. Id. at 63. In Tapia, the relevant statute was amended three years before the application for a permit, which was the operative event. Id. In this case, the statute was enacted three years after Justice’s mother agreed to the exculpatory agreement. Thus, Tapia is distinguishable from this case.

Justice also contends that the application of section 184B.20 in this case would not impair any vested rights belonging to Marvel. The existence of vested rights may, in certain circumstances, defeat the intended retroactive application of a statute if retroactive application would be unconstitutional. See
In re Individual 35W Bridge Litigation, 806 N.W.2d 820, 829-33 (Minn. 2011) (A10-0087); Peterson v. City of Minneapolis, 285 Minn. 282, 173 N.W.2d 353, 357-58 (1969) ; Yaeger v. Delano Granite Works, 250 Minn. 303, 84 N.W.2d 363, 366-67 (1957) ; Holen v. Minneapolis-St. Paul Metro. Airports Comm’n, 250 Minn. 130, 84 N.W.2d 282, 287 (1957) ; K.E. v. Hoffman, 452 N.W.2d 509, 512-13 (Minn. App. 1990), review denied (Minn. May 7, 1990). This understanding of vested rights is apparent in Larson v. Independent School District No. 314, 305 Minn. 358, 233 N.W.2d 744 (1975), the case on which Justice primarily relies in his principal brief. In Larson, the supreme court concluded that the retroactive application of a rule of civil procedure, as intended, did not “deprive[ ] defendants of vested rights of property and privacy in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution.Id. at 748 (emphasis added). Outside the context of land use and zoning, the vested-rights doctrine simply does not affect the determination of whether a statute is intended to have retroactive application. Cf . Interstate Power Co. v. Nobles County Bd. of Commissioners, 617 N.W.2d 566, 575-78 (Minn. 2000) (citing cases). Because we have determined that the legislature did not intend for section 184B.20 to apply retroactively, the vested-rights doctrine is not relevant.

Thus, the district court did not err by reasoning that section 184B.20 does not apply retroactively to Justice’s mother’s agreement to Marvel’s exculpatory clause.

C. Marvel’s Exculpatory Clause

Justice also argues that Marvel’s exculpatory clause is unenforceable on the grounds that it is overly broad and contrary to public policy.

“A clause exonerating a party from liability will be strictly construed against the benefited party.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982). “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. In addition, an exculpatory clause is unenforceable if it “contravenes public policy.” Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 789 (Minn. 2005) (citing Schlobohm, 326 N.W.2d at 923 ).

1. Public Policy

Justice contends that Marvel’s exculpatory clause is unenforceable on the ground that it is contrary to public policy.

The supreme court has prescribed a “two-prong test” to determine whether an exculpatory clause is contrary to public policy. Schlobohm, 326 N.W.2d at 923. The test focuses on two factors: “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision)” and “(2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).” Id. In this case, the district court determined that Marvel’ s exculpatory clause is not contrary to public policy because there was no bargaining-power disparity and because Marvel did not provide “an essential or public service.”

Justice contends that there was a disparity in bargaining power because there was no opportunity for his mother to negotiate the terms of the exculpatory clause and because he would not have been permitted to attend the birthday party if his mother had not signed the form agreement. Justice’s contention is not legally viable. “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” Id. at 924. More is required. The agreement must relate to a “necessary service,” and there also “must be a showing … that the services could not be obtained elsewhere.” Id. at 924-25. Consequently, there is no disparity in bargaining power, for purposes of the Schlobohm public-policy analysis, if a consumer has the choice to simply forego the activity. See
Beehner v. Cragun Corp., 636 N.W.2d 821, 827-28 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 730 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). There is no evidence in the summary-judgment record that the services Marvel provided were unavailable else where, and we may presume that Justice was not compelled to participate in the birthday party because the provision of inflatable amusement equipment is not a necessary service. Thus, as in Schlobohm and Malecha, there was no disparity in bargaining power, as required for a conclusion that an exculpatory clause is contrary to public policy.

Justice also contends that the type of services offered by Marvel causes its exculpatory clause to be incompatible with public policy. He likens Marvel’s services to the “[t]ypes of services thought to be subject to public regulation,” such as “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.” Schlobohm, 326 N.W.2d at 925. But the supreme court has recognized that “contracts relating to recreational activities do not fall within any of the categories where the public interest is involved,” on the ground that they are not “services of great importance to the public, which were a practical necessity for some members of the public.” Id. at 926. Subsequent opinions have relied on this principle in concluding that the use of an exculpatory clause in connection with a recreational activity is not contrary to public policy. See
Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 802 (Minn. App. 2006) (health club); Beehner, 636 N.W.2d at 829 (horseback riding); Malecha, 392 N.W.2d at 730 (skydiving). A business that provides inflatable amusement equipment is well within the category of recreational activities for which exculpatory clauses are not prohibited.

Justice counters that providing inflatable amusement equipment is the type of service that is “generally thought suitable for public regulation,” Schlobohm, 326 N.W.2d at 925, because it now is, in fact, regulated by statute, as of 2010. See Minn. Stat. § 184B.20; 2010 Minn. Laws ch. 347, art. 3, § 2, at 46. Furthermore, he contends that Marvel’s exculpatory clause is contrary to public policy because the legislature has declared that all exculpatory clauses concerning inflatable amusement equipment are void. To rely on section 184B.20 for purposes of the Schlobohm public-policy analysis would be, in effect, to apply the statute retroactively. We have already concluded that section 184B.20 does not apply retroactively to an exculpatory clause that was signed before the statute’s effective date. See supra part B. Accordingly, Justice cannot rely on section 184B.20 to establish that Marvel’s exculpatory clause is contrary to public policy in the sense described in Schlobohm.

Thus, the district court did not err by reasoning that Marvel’s exculpatory clause does not violate public policy.

2. Scope of Release

Justice contends that Marvel’s exculpatory clause is unenforceable on the ground that it purports to release Marvel from claims arising from Marvel’s intentional, willful or wanton acts. Justice alternatively contends that Marvel’s exculpatory clause is unenforceable on the ground that it is ambiguous with respect to whether it releases Marvel from claims arising from Marvel’s intentional, willful or wanton acts.

Exculpatory clauses are permissible but not favored and, thus, are “strictly construed against the benefited party.” Schlobohm, 326 N.W.2d at 923. An exculpatory clause is unenforceable if it is “either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts.” Id.

By signing Marvel’s exculpatory clause, Justice’s mother agreed, on her own behalf and on behalf of Justice, to “release … MARVEL, LLC, … from and against any and all claims, injuries, liabilities or damages.” (Emphasis added.) The plain language of this clause purports to release claims of both ordinary negligence and greater-than-ordinary negligence, including claims based on intentional, willful or wanton acts. Marvel contends that its exculpatory clause is similar to exculpatory clauses in other cases in which the appellate courts concluded that the clauses were limited to ordinary negligence. In each of those cases, however, the exculpatory clause expressly referred to claims of “negligence,” which provided the appellate courts with a basis for concluding that the clauses were limited to claims of ordinary negligence. See
Schlobohm, 326 N.W.2d at 922-23 ; Anderson, 712 N.W.2d at 799, 801 ; Malecha, 392 N.W.2d at 728-30 ; see also Beehner, 636 N.W.2d at 825-27. But Marvel’s exculpatory clause does not make any reference to claims of “ordinary negligence” or simply “negligence.” Rather, it expansively refers to “any and all claims,” which means that it purports to release Marvel from claims arising from its intentional, willful or wanton acts. Thus, Marvel’s exculpatory clause is overly broad.

3. Effect of Overbreadth

Having determined that Marvel’s exculpatory clause is overly broad, we must consider the consequences of that determination. The question arises whether Marvel’s exculpatory clause is completely unenforceable, even with respect to claims of ordinary negligence, or unenforceable only to the extent that Justice asserts a claim of greater-than-ordinary negligence. Justice contends that an overly broad exculpatory clause is “invalid,” without discussing more specifically the nature or extent of its invalidity. Marvel argues only that the exculpatory clause is valid, without making any alternative argument about whether or how this court should apply the exculpatory clause if it is invalid.

This court considered this precise issue in Anderson, in which we characterized a health club’s exculpatory clause as “arguably ambiguous.” 712 N.W.2d at 801. The plaintiff had asserted only a claim of ordinary negligence. Id. We stated that it “would subvert the parties’ manifested intent” to conclude that the plaintiffs ordinary-negligence claim was not barred by a release that clearly released such a claim. Id. We reasoned that “any term in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire contract.Id. (emphasis added) (quotation and alteration omitted). In light of Anderson, Marvel’s exculpatory clause is enforceable to the extent that Justice asserts a claim of ordinary negligence, but it is unenforceable to the extent that Justice asserts a claim of greater-than-ordinary negligence. See id. ; see also
ADT Security Services, Inc. v. Swenson, 276 F.R.D. 278, 300-01 (D. Minn. 2011) (concluding that overly broad nature of exculpatory clause “limit[s] its applicability to claims which do not implicate willful and wanton negligence or intentional behavior”).

Thus, the district court did not err by enforcing Marvel’s exculpatory clause and concluding that it released Justice’s claim of ordinary negligence, even though the clause is overly broad.

D. Greater-than-Ordinary Negligence

Justice argues that he has introduced evidence that is sufficient to create a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. In response, Marvel argues that Justice did not preserve this argument because he did not present it to the district court.

Marvel is correct. Justice did not argue to the district court that Marvel’s summary-judgment motion should be denied on the ground that there is a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. The district court expressly stated in its order that “Plaintiffs claims are based solely on negligence, and there is no claim by Plaintiff nor evidence in the record to suggest that Defendant or its employees acted willfully, intentionally or wantonly.” Justice is making a claim of greater-than-ordinary negligence for the first time on appeal. In that situation, an appellate court generally will not consider an argument that was forfeited because it was not presented to the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) ; Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d 38, 42-43 (Minn. App. 2014).

Justice contends that he adequately preserved a claim of greater-than-ordinary negligence by pleading his claim broadly. He also contends that he raised an issue of greater-than-ordinary negligence in his motion to amend the complaint to add a request for punitive damages. Regardless of how Justice pleaded his claim or claims in his complaint, and regardless of the arguments he made with respect to a different motion, he had an obligation to oppose Marvel’s summary-judgment motion by submitting and citing admissible evidence in support of all of his claims and by presenting all of his legal arguments for denying the motion. See
DLH, Inc. v. Russ, 566 N.W.2d 60, 69-71 (Minn. 1997) ; Hunt v. IBM Mid Am. Emps. Fed. Credit Union, 384 N.W.2d 853, 855-56 (Minn. 1986) ; Molde v. CitiMortgage, Inc., 781 N.W.2d 36, 44 (Minn. App. 2010) ; Fontaine v. Steen, 759 N.W.2d 672, 676 (Minn. App. 2009). But Justice did not mention a claim of. greater-than-ordinary negligence in his memorandum of law in opposition to Marvel’s motion.

Thus, we will not consider Justice’s argument that the district court should have denied Marvel’s summary-judgment motion with respect to a claim of greater-than-ordinary negligence. See
Thiele, 425 N.W.2d at 582 ; Doe 175 , 842 N.W.2d at 42-43.

E. Post-Injury Agreement

Justice argues that the district court erred by reasoning that the agreement signed by his mother and step-father in September 2007, after Justice was injured, does not abrogate or modify the exculpatory clause.

The September 2007 agreement provides, in relevant part,

As of the date of this Agreement, Carter Justice seems to have recovered completely from the Accident and has been removed from any restrictions by his attending physician(s). Parents agree that if there are no new medical complications arising as a result of the Accident within six months following the date of this Agreement they will execute a full and complete release and discharge of any and all claims against [Marvel] stemming from the Accident.

Justice argued to the district court that this post-injury agreement abrogated the exculpatory clause on the ground that the parties “agreed to substitute a new contract” for the exculpatory clause. The district court rejected the argument, reasoning that the post-injury agreement does not abrogate or modify the exculpatory clause because it does not refer to the exculpatory clause and because it states that it is not “an admission of any fault or legal liability.”

On appeal, Justice contends that the post-injury agreement abrogates the exculpatory clause because the post-injury agreement is specifically related to Justice’s head injury, Justice’s mother and step-father agreed to release claims arising from Justice’s head injury only if certain conditions were present, and the conditions stated in the post-injury agreement were not present. In response, Marvel contends that the post-injury agreement did not modify the exculpatory clause because the agreement does not refer to the waiver and because it was entered into by Justice’s mother and step-father on their own behalf but not on behalf of Justice.

Justice’s argument requires us to interpret the post-injury agreement, which is a contract. “The primary goal of contract interpretation is to determine and enforce the intent of the parties.” Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004). “Where there is a written instrument, the intent of the parties is determined from the plain language of the instrument itself.” Id. If a contract is clear and unambiguous, courts should apply the plain language of the contract and “not rewrite, modify, or limit its effect by a strained construction.” Id. This court applies a de novo standard of review to a district court’s interpretation of a contract. Id.

The district court correctly interpreted the post-injury agreement. It is an agreement between Marvel and Justice’s mother and step-father but not between Marvel and Justice, the two parties to this case. It does not refer to the pre-injury exculpatory clause in any way. It provided for the possibility of “a full and complete release and discharge of any and all claims against [Marvel] stemming from” Justice’s injury. If such a release had been signed, it would have provided Marvel with an additional defense to Justice’s claim. But Justice’s mother and step-father never signed the release that was contemplated by the post-injury agreement. The absence of a second release does not in any way alter the release contained in the exculpatory clause that was signed by Justice’s mother on the day of Justice’s injury.

Thus, the district court did not err by reasoning that the post-injury agreement does not abrogate or modify the exculpatory clause.

DECISION

The district court did not err by granting Marvel’s motion for summary judgment on the ground that Justice’s sole claim of ordinary negligence is barred by the exculpatory clause that his mother signed on his behalf. In light of that conclusion, Justice’s argument that the district court erred by denying his motion to amend the complaint to add a request for punitive damages is moot.

Affirmed.

——–

Notes:

1 Marvel contends that Justice did not preserve this argument by presenting it to the district court. Marvel’s contention is colorable because Justice presented the issue to the district court in a somewhat indirect manner. But the district court determined that the issue was presented, stating that it “was addressed in the [parties’] memoranda and is therefore worth clarifying.” Accordingly, the argument is sufficiently preserved for appellate review.

2 The Minnesota Association for Justice has filed an amicus brief supporting Justice’s position. The association notes that a person may void a contract that he or she entered into as a minor, contends that compensation of children who are tort victims is an important objective, and asserts that courts in 17 other states do not enforce parental waivers of minors’ claims. Our research indicates that courts in other states have resolved the issue in various ways. Courts in some states have enforced exculpatory clauses signed by a parent on behalf of a minor child. See, e.g.,
Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 745-47 (2002) ; BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345, 353-55 (2013) ; Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 206-07 (1998). Courts in other states have not enforced such exculpatory clauses. See, e.g., Woodman ex rel. Woodman v. Kera, LLC, 486 Mich. 228, 785 N.W.2d 1, 8 (2010) ; Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) ; Scott v. Pacific W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 10-12 (1992).

——–


Bonnen v. Pocono Whitewater, Ltd. (M.D. Pa. 2021)

CAROLINE BONNEN, et al., Plaintiffs,
v.
POCONO WHITEWATER, LTD., Defendant.

Civil Action No. 3:20-cv-01532

United States District Court, M.D. Pennsylvania

September 17, 2021

MEMORANDUM

JOSEPH F. SAPORITO, JR., U.S. Magistrate Judge.

 This diversity action is before the court on the defendant’s motion to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) based on enforcement of a forum selection provision. (Doc. 15). The action arises out of an incident where the plaintiffs decedent died as a result of being thrown from a raft while Whitewater rafting on the Lehigh River in Carbon County, Pennsylvania. For the reasons set forth herein, we will deny the motion.

 I. Statement of Facts

 On September 1, 2019, Christopher Santana was one of nine occupants in an eight-person raft, none of whom were guides, who were Whitewater rafting on the Lehigh River in Jim Thorpe, Carbon County, Pennsylvania. After the raft hit a rock, Santana was thrown from the raft into turbulent and rocky waters. His foot became lodged between rocks causing him to become submerged underwater, which resulted in his death by drowning. The plaintiff, Caroline Bonnen, individually and as Administratrix of the Estate of Christopher Santana, brings this wrongful death and survival action against the defendant, Pocono Whitewater, Ltd.

 The defendant has filed a motion to dismiss (Doc. 15), seeking dismissal on the ground that a forum selection provision contained in a release of liability purportedly signed by the decedent sets the Court of Common Pleas of Carbon County as the appropriate and agreed-upon venue for any dispute “aris[ing] out of th[e] agreement or otherwise between the parties.” (Doc. 14-5).

 A review of the amended complaint reflects that the plaintiff did not plead whether the release of liability has any relevance to the incident. Rather, the plaintiff has pled that the defendant was negligent, grossly negligent, and reckless in its conduct in a variety of several itemized instances. (Doc. 9 ¶ 31). In her opposition papers, the plaintiff contends that the release of liability, which includes the forum selection clause contained therein, is invalid because the decedent did not execute the release. (Doc. 20 passim; Doc. 21, at 3-5). The plaintiff maintains that it was she who signed the decedent’s name, without authority to contract on behalf of the decedent. (Id.).

 The motion has been fully briefed by the parties and is ripe for disposition. (Doc. 16; Doc. 21).

 II. Legal Standard

 Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief is granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiffs claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegations.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevy, 481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.Appx. 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).

 III. Discussion

 Turning to the motion to dismiss based on enforcement of a forum selection provision under Fed.R.Civ.P. 12(b)(6), when the parties’ agreement contains a valid forum selection clause designating a particular forum for settling disputes arising out of their contract, a Rule 12(b)(6) dismissal is a permissible means of enforcing that forum selection clause. Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001). Podesta v. Hanzel, 684 Fed.Appx. 213, 216 (3d Cir. 2017); see also Eureka Res., LLC v. Hoden Roots LLC, ___F.Supp.3d.___, 2021 WL 3545068, at * 1 & n.5 (M.D. Pa. Aug. 11, 2021).

 Here, the plaintiff disputes the validity of the release containing a forum selection clause because it was allegedly signed in the decedent’s name by his mother, the plaintiff, without authorization or consent by the decedent. Based on the factual allegations by the parties, we are unable to conclude that the decedent unambiguously manifested his assent to the forum selection clause, and thus we are unable to find that the forum selection clause is valid. See Oak Street Printery LLC v. Fujifilm N. Am. Corp., 895 F.Supp.2d 613, 619 (M.D. Pa. 2012). Because the validity of the form selection clause remains in doubt, the defendant’s preferred forum-the Carbon County state courts-is not controlling. See Id. Moreover, Pennsylvania law holds that such a release agreement cannot bind non-signatories. See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 497 (Pa. Super. Ct. 2016) (noting that a statutory “wrongful death claimant possesses an independent, non-derivative right of action” that cannot be subjected to a forum selection clause, signed by the decedent, without the claimant’s consent); cf. Buttermore v. Aliquippa Hospital, 561 A.2d 733, 736 (Pa. l989)(holding that a wife’s consortium claim was an independent cause of action, and thus not barred by a settlement agreement to which she was not a signatory). Therefore, construing all well-pleaded facts as true, as we must, we are constrained to deny the motion to dismiss.

 An appropriate order follows.


A Parent cannot sign away a minor’s right to sue in New Jersey, however, a parent can agree to arbitrate the minor’s claims.

Another trampoline park case where the plaintiffs are required to arbitrate their claim even though the release which included the arbitration clause was not enforceable in New Jersey.

Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

State: New Jersey

Plaintiff: David Johnson, an infant by his guardian ad litem, Shalonda Johnson, and Shalonda Johnson, individually

Defendant: Sky Zone Indoor Trampoline Park in Springfield, Sky Zone, LLC, Sky Zone Franchise Group, LLC, and Go Ahead and Jump 4, LLC

Plaintiff Claims: negligence

Defendant Defenses: release required arbitration of the claims

Holding: For the defendants, claims must be arbitrated

Year: 2021

Summary

The New Jersey Supreme Court held Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006), that a parent could not sign away a minor’s right to sue. See However, in Hojnowski the court stated a parent could agree to arbitrate a minor’s claims. This decision of the injuries received at a trampoline park held the same decision. When signing the release, the mother agreed to arbitration of any claims.

Facts

On July 14, 2018, ten-year-old David and his mother visited the Park. Before they were permitted entry, however, a Park employee apprised Johnson she was required to sign a “Participation Agreement, Release and Assumption of Risk” (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs again visited the Park and, while jumping on a trampoline, David seriously injured his leg. The appellate record did not include evidence of whether Johnson executed a second waiver.

The Agreement is presented to the patrons at a kiosk in the form of an electronic document. The patrons are expected to read it and acknowledge their consent to be bound by the terms contained therein by placing an electronic “checkmark” and entering certain personally identifying information. Defendants argue David’s mother placed an electronic checkmark where indicated, and thus acknowledged she understood and agreed “to arbitrate any dispute as set forth in this section” and waived “[her] right, and the right(s) of [her] minor child(ren) . . . to maintain a lawsuit against [defendants] . . . for any and all claims covered by this Agreement.”

The mother filed a lawsuit for herself and her son. The defendant argued the arbitration clause in the release should apply. That would remove the litigation from the state court system and have a neutral arbitrator decide the case. Normally arbitrators do not hand out damages to the extend a jury would. The court agreed, leading to this appeal.

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

The argument was quite simple. The plaintiff argued that since the New Jersey Supreme Court had decided that a parent could not sign away a minor’s right to sue, that the release, including the arbitration clause should be thrown out.

The plaintiff first argued there was no real notice because the plaintiff had checked a box on the electronic form and that was not enough notice required to alert the plaintiff that she was going to have to arbitrate any claim. The defense countered that the plaintiff has completed the form giving the defendant a lot of contact information.

In response, defense counsel argued Johnson did a great deal more than merely place a checkmark on a section of an electronic document. “We don’t just have the electronic signatures. We have her name, her address, her phone number, her date of birth . . . it’s not merely that you have [Janay’s] certification.

The plaintiff then argued the arbitration clause was ambiguous and unenforceable as a matter of law.

As a matter of public policy, our Supreme Court has upheld arbitration as a “favored means of dispute resolution.” Hojnowski, 187 N.J. at 342. The Court has consistently endorsed a “strong preference to enforce arbitration agreements, both at the state and federal level.” In determining whether a valid agreement to arbitrate exists, we will apply “state contract-law principles.” Hojnowski, 187 N.J. at 342. Guided by these principles, “[a]n arbitration agreement is valid only if the parties intended to arbitrate because parties are not required ‘to arbitrate when they have not agreed to do so.

The statement that the arbitration clause is only valid if the parties intended to arbitrate is good for arbitration clauses and contracts. The court also found the language requiring arbitration was not ambiguous or unenforceable.

Mutuality of assent is the hallmark of an enforceable contract. Thus, the initial inquiry is whether the parties actually and knowingly agreed to arbitrate their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration provision must be “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right . . . .” “No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights.” If, “at least in some general and sufficiently broad way,” the language of the clause conveys arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced.

The court went further to state:

The language in the arbitration clause states plaintiffs were “agreeing to arbitrate any dispute as set forth in this section” and were “waiving [their] right . . . to maintain a lawsuit.” It sets forth, “[b]y agreeing to arbitrate, [plaintiffs] understand that [they] will NOT have the right to have [their] claim[s] determined by a jury.” This language clearly and unambiguously puts plaintiffs on notice that they are waiving the right to a jury trial and the right to pursue their claims in a court of law. This part of the Agreement is therefore enforceable.

The plaintiff then argued that forcing her to sign an exculpatory contract of adhesion right before a birthday party was a violation of the doctrines of procedural and substantive unconscionability.

We next address plaintiffs’ arguments attacking the enforcement of the arbitration clause based on the doctrines of procedural and substantive unconscionability. In essence, plaintiffs argue requiring Johnson to read and sign an ambiguous contract of adhesion immediately before a birthday party left her with no other choice but to assent.

In New Jersey there is a four-part test to determine if an agreement is a contract of adhesion.

[I]n determining whether to enforce the terms of a contract of adhesion, [a court] look[s] not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties’ relative bargaining positions, [(3)] the degree of economic compulsion motivating the “adhering” party, and [(4)] the public interests affected by the contract.

The court’s response was they could not find anything in the agreement that rose to the level that the contract was a contract of adhesion under New Jersey law.

Although the case is not over, any damages will probably significantly reduce by requiring arbitration.

So Now What?

This is the second decision that is almost identical to this one. Can a release in New Jersey at a trampoline park require the parent to arbitrate the minor’s claim. See New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly. This decision does not mention the decision is Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206 which is almost identical in the facts.

There are two ways to limit damages in a state that does not allow a parent to sign a release giving up a minor’s right to sue. Assumption of the risk agreements and the defense of assumption of the risk. Did the parent AND the minor knowingly and voluntarily enter into the risk that caused the injury. This is only valid if you can prove the minor knew or you provided the minor with the education or knowledge to knowingly and voluntarily assume the risk. Voluntary is the easy part proving the minor knew of the risk is difficult.

Arbitration then is the next defense in this ladder to reduce damages. Most states do not allow an arbitrator to award more than the basic damages. Punitive damages cannot be awarded by arbitrators. Also, arbitrators are not over come by emotion or other factors that would influence them into awarding large damages.

Before putting an arbitration clause in your agreement, you need to determine two things.

  1. Is arbitration better than the court system in your state. If your state supports the use of a release, a release gets you out of a case without any damages. Even though arbitration will generally not give the plaintiff large awards, they usually award something.
  2. Are there benefits to arbitration in your state that outweigh other means of resolving the dispute.

In those states that do not support a parent signing away a minor’s right to sue, arbitration is probably a good result. See States that allow a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Who am I

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Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

DAVID JOHNSON, an infant by his guardian ad litem, SHALONDA JOHNSON, and SHALONDA JOHNSON, individually, Plaintiffs-Appellants,
v.
SKY ZONE INDOOR TRAMPOLINE PARK IN SPRINGFIELD, SKY ZONE, LLC, SKY ZONE FRANCHISE GROUP, LLC, and GO AHEAD AND JUMP 4, LLC, Defendants-Respondents.

No. A-2489-20

Superior Court of New Jersey, Appellate Division

December 6, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2021

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5446-20.

Edward M. Colligan argued the cause for appellants (Colligan & Colligan attorneys; Edward M. Colligan, on the brief).

Kelly A. Waters argued the cause for respondents (Wood Smith Henning & Berman, attorneys; Kelly A. Waters, of counsel and on the brief; Jill A. Mucerino and Sean P. Shoolbraid, on the brief).

Before Judges Fuentes, Gilson, and Gooden Brown.

PER CURIAM

David Johnson, a child under the age of eighteen, was injured while visiting a trampoline park owned and operated by Sky Zone, LLC, Sky Zone Franchise Group, LLC and Go Ahead and Jump 4, LLC (collectively, Park or defendants). Shalonda Johnson, individually and as guardian ad litem of her minor son (collectively, plaintiffs), [1] filed a civil action against defendants in the Superior Court, Law Division, in Union County, seeking compensatory damages. In lieu of filing a responsive pleading, defendants moved before the Law Division to enforce an arbitration clause contained in an electronic document Johnson signed as a condition of being permitted to enter the Park. After considering the arguments of counsel and the exhibits submitted, the Law Division judge assigned to the case granted defendants’ motion to enforce the arbitration clause and dismissed the case with prejudice in an order entered on March 24, 2021.

In this appeal, plaintiffs argue the arbitration clause contained in this electronic general liability release contract is unenforceable. After reviewing the record presented to the Law Division judge, we affirm the part of the order enforcing the arbitration clause, vacate the dismissal of plaintiffs’ complaint with prejudice, and remand for the court to stay judicial proceedings related to this case pending the outcome of the arbitration.[2]

I.

A.

On July 14, 2018, ten-year-old David and his mother visited the Park. Before they were permitted entry, however, a Park employee apprised Johnson she was required to sign a “Participation Agreement, Release and Assumption of Risk” (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs again visited the Park and, while jumping on a trampoline, David seriously injured his leg.[3] The appellate record did not include evidence of whether Johnson executed a second waiver.

The Agreement contains a general release provision “intended to release and provide other benefits, legal protections and consideration” to defendants. For example, it contains an “acknowledgement of potential injuries” provision, which places patrons on notice that “participating in trampoline and other activities is inherently and obviously dangerous.” The Agreement also includes a “voluntary assumption of risk acknowledgment” provision, which informs patrons that they “are participating voluntarily at [their] own risk” and could suffer “significant bodily injuries” or “die or become paralyzed, partially or fully, through their use of the Sky Zone facility and participation in Sky Zone activities.”

Finally, the Agreement contains a “release of liability” section, which requires patrons to “forever, irrevocably and unconditionally release, waive, relinquish, discharge from liability and covenant not to sue [Sky Zone]” for

any and all claims . . . of whatever kind or nature, in law, equity or otherwise, . . . related to or arising, directly or indirectly, from [their] access to and/or use of the Sky Zone [f]acility, . . . including, without limitation, any claim for negligence, failure to warn or other omission, . . . personal injury, . . . [or] bodily harm . . . .

The enforceability of these exculpatory provisions are not part of this appeal. We express no opinion as to whether these exculpatory provisions are enforceable under our State’s common law, as expressed by our Supreme Court in Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010), and Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006).

The dispositive issue in this appeal concerns the enforceability of the section in the Agreement entitled, in part, “arbitration of disputes.” The Agreement is presented to the patrons at a kiosk in the form of an electronic document. The patrons are expected to read it and acknowledge their consent to be bound by the terms contained therein by placing an electronic “checkmark” and entering certain personally identifying information. Defendants argue David’s mother placed an electronic checkmark where indicated, and thus acknowledged she understood and agreed “to arbitrate any dispute as set forth in this section” and waived “[her] right, and the right(s) of [her] minor child(ren) . . . to maintain a lawsuit against [defendants] . . . for any and all claims covered by this Agreement.” This section also provides the following recitation of the rights plaintiffs agreed to waive as a precondition to enter the Park and participate in the activities available therein:

By agreeing to arbitrate, I understand that I will NOT have the right to have my claim determined by a jury, and the minor child(ren) above will NOT have the right to have claim(s) determined by a jury. Reciprocally, [the Sky Zone defendants] waive their right to maintain a lawsuit against [plaintiff] . . . for any and all claims covered by this [a]greement, and they will not have the right to have their claim(s) determined by a jury. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY OR THE CHILD’S ACCESS TO AND/OR USE OF THE SKY ZONE PREMISES AND/OR ITS EQUIPMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE BROUGHT WITHIN ONE YEAR OF ITS ACCRUAL (i.e., the date of the alleged injury) FOR AN ADULT AND WITHIN THE APPLICABLE STATUTE OF LIMITATIONS FOR A MINOR AND BE DETERMINED BY ARBITRATION IN THE COUNTY OF THE SKY ZONE FACILITY . . . BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY [JUDICIAL ARBITRATION AND MEDIATION SERVICES (JAMS)] PURSUANT TO ITS RULE 16.1 EXPEDITED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. This [a]greement shall be governed by, construed and interpreted in accordance with the laws of the State of New Jersey, without regard to choice of law principles. Notwithstanding the provision with respect to the applicable substantive law, any arbitration conducted pursuant to the terms of this [a]greement shall be governed by the Federal Arbitration Act (9 U.S.C., Sec. 1-16). I understand and acknowledge that the JAMS Arbitration Rules to which I agree are available online for my review at jamsadr.com, and include JAMS Comprehensive Arbitration Rules & Procedures; Rule 16.1 Expedited Procedures; and, Policy On Consumer Minimum Standards Of Procedural Fairness.

[(Emphasis in original).]

The Agreement also contained a merger and a severability clause, in which Johnson acknowledged: “I have had sufficient opportunity to read this entire document. I have read and understood and voluntarily agree to be bound by its terms.” The clause further provided:

This [a]greement constitutes and contains the entire agreement between [Sky Zone] and [plaintiffs] relating to the . . . use of the Sky Zone Facility. There are no other agreements, oral, written, or implied, with respect to such matters. . . . If any term or provision of this [agreement] shall be held illegal, unenforceable, or in conflict with any law governing this [agreement] the validity of the remaining portions shall not be affected thereby. B.

Plaintiffs filed their personal injury complaint against defendants on August 13, 2020. The Law Division entered default against defendants on December 28, 2020, for failure to file a timely responsive pleading. On January 8, 2021, defendants’ counsel notified plaintiffs’ counsel he intended to file a motion to dismiss the complaint in lieu of an answer pursuant to Rule 4:6-2(e), based on plaintiffs’ failure to state a claim upon which relief may be granted. The attorneys thereafter entered into a Consent Agreement, stating in relevant part:

This matter having come before the [c]ourt upon the Consent of the parties, whereby the parties consent, stipulate, and agree that the default entered against Defendants, SKY ZONE FRANCHISE GROUP, LLC and GO AHEAD AND JUMP 4, LLC, be vacated and the time for Defendant to Answer or Otherwise Plead be extended until January 30, 2021 . . . .

[(Strikethrough in original).]

Plaintiff’s counsel unilaterally struck “or Otherwise Plead” from the Consent Order. On February 2, 2021, the Law Division accepted the Consent Agreement and vacated the default. Defendants moved to dismiss the complaint and compel arbitration on January 30, 2021. Defendants’ motion came for oral argument before the Law Division on March 24, 2021. Plaintiffs’ counsel argued the arbitration clause presented to Johnson was unenforceable based on both the obscure, technical language used in the document, and by presenting it as part of an electronic document in a kiosk located outside the Park’s entrance. Plaintiff’s counsel also emphasized the circumstances under which Johnson allegedly waived her son’s constitutional right to a jury trial: “[M]y client went in July [2018] to be a guest at a birthday party. The . . . defense . . . alleges that she signed this Agreement at that time and at that time, they’re saying that she signed an agreement that was good forever.”

In response, defense counsel argued Johnson did a great deal more than merely place a checkmark on a section of an electronic document. “We don’t just have the electronic signatures. We have her name, her address, her phone number, her date of birth . . . it’s not merely that you have [Janay’s] certification. You have identifiers that Skyzone would not have gotten without the plaintiff.” The reference made by defense counsel to “Janay’s certification” relates to Michael Janay, the Managing Member of defendant Go Ahead and Jump 4, LLC., who averred:

As a matter of business practice, all patrons who enter the Park for the first time are required to electronically sign a Participant Agreement, Release and Assumption of Risk . . . at a kiosk, or online, as a pre-condition to entry. Patrons are not permitted entry into the Park unless a Participation Agreement has been executed on their behalf and there are signs throughout the Park indicating the same. . . . [A]ll patrons who enter the Park are required to provide a valid email address when electronically signing the Participation Agreement.

. . . [O]nce the Participation Agreement is electronically signed, a copy of the executed Participation Agreement is sent to the email address provided by the patron.

. . . .

Based on the information provided, a copy of this Participation Agreement was sent to Shalonda Johnson’s email following Shalonda Johnson’s execution of the Participation Agreement at the Park on July 14, 2018. As indicated, Shalonda Johnson listed her son David Johnson[, ] who is the Minor[-]Plaintiff, and another minor Kevin Johnson. On that basis, Shalonda Johnson, David Johnson, and Kevin Johnson were permitted entry into the Park on July 14, 2018.

After considering the arguments of counsel, the motion judge granted defendants’ motion on March 24, 2021. The judge explained the basis of his decision in a Statement of Reasons attached to the order.

II.

Against this factual backdrop, plaintiffs argue the arbitration agreement is ambiguous and unenforceable as a matter of law. We reject these arguments and affirm the part of the Law Division’s Order upholding the enforceability of the arbitration clause. Because the Law Division’s decision to enforce this arbitration provision is purely a question of law, our standard of review is de novo. Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020); see also Kernahan v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 316 (2019) (“Whether a contractual arbitration provision is enforceable is a question of law, and we need not defer to the interpretative analysis of the trial . . . court[] unless we find it persuasive.”).

As a matter of public policy, our Supreme Court has upheld arbitration as a “favored means of dispute resolution.” Hojnowski, 187 N.J. at 342. The Court has consistently endorsed a “strong preference to enforce arbitration agreements, both at the state and federal level.” Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). In determining whether a valid agreement to arbitrate exists, we will apply “state contract-law principles.” Hojnowski, 187 N.J. at 342. Guided by these principles, “[a]n arbitration agreement is valid only if the parties intended to arbitrate because parties are not required ‘to arbitrate when they have not agreed to do so.'” Kernahan, 236 N.J. at 317 (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989)).

Mutuality of assent is the hallmark of an enforceable contract. Thus, the initial inquiry is whether the parties actually and knowingly agreed to arbitrate their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration provision must be “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right . . . .” Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 443 (2014). “No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights.” Id. at 444. If, “at least in some general and sufficiently broad way,” the language of the clause conveys arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced. Id. at 447. “The key . . . is clarity.” Barr v. Bishop Rosen & Co., 442 N.J.Super. 599, 607 (App. Div. 2015).

Here, plaintiffs claim the arbitration clause is ambiguous and therefore unenforceable because it contains “void, inaccurate, misleading and ambiguous language . . . .” and “confusing lower[-]case passages and all upper[-]case bold passages.” Plaintiffs argue Hojnowski, 187 N.J. at 327, “prohibits a parent of a minor child from releasing the child’s potential tort claims arising out of the use of a commercial recreational facility.” According to plaintiffs, JAMS, the named forum in the arbitration provision, is “not permitted to conduct arbitration in New Jersey” and thus the agreement should fail. We disagree.

The language in the arbitration clause states plaintiffs were “agreeing to arbitrate any dispute as set forth in this section” and were “waiving [their] right . . . to maintain a lawsuit.” It sets forth, “[b]y agreeing to arbitrate, [plaintiffs] understand that [they] will NOT have the right to have [their] claim[s] determined by a jury.” This language clearly and unambiguously puts plaintiffs on notice that they are waiving the right to a jury trial and the right to pursue their claims in a court of law. This part of the Agreement is therefore enforceable. See Flanzman, 244 N.J. at 137-38 (citing Atalese, 219 N.J. at 444-45).

Plaintiffs’ reliance on Hojnowski is misplaced. Writing for a unanimous Court, then Justice Zazzali[4] made clear “permitting arbitration of a minor’s claims is consistent with New Jersey case law discussing the enforceability of arbitration agreements that affect the rights of children.” 187 N.J. at 343. Here, plaintiff’s mother signed the Agreement that included an arbitration clause.

The unavailability of JAMS does not render the arbitration clause unenforceable. Although the parties agree JAMS is not available to arbitrate this case, the Agreement contains a severability clause that states: “If any term or provision of this [agreement] shall be held illegal, unenforceable, or in conflict with any law governing this [agreement] the validity of the remaining portions shall not be affected thereby.” Severability clauses “are indicative of the parties’ intent that the agreement as a whole survives the excision of an unenforceable provision.” Arafa v. Health Express Corp., 243 N.J. 147, 169 n.2 (2020). As the Supreme Court explained in Flanzman:

No New Jersey statutory provision or prior decision has elevated the selection of an “arbitral institution” or the designation of a “general process for selecting an arbitration mechanism or setting” to the status of essential contract terms, without which an arbitration agreement must fail.

To the contrary, the [New Jersey Arbitration Act (NJAA)] makes clear that its default provision for the selection of an arbitrator may operate in the absence of contractual terms prescribing such procedures. See N.J.S.A. 2A:23B-11(a). The NJAA reflects the Legislature’s intent that the parties’ omission of an arbitrator or arbitral organization, or their failure to set forth the method by which they will choose an arbitrator in the event of a dispute, will not preclude the enforcement of their agreement. Ibid.

[244 N.J. at 139.]

The arbitration clause at issue here must be interpreted in accordance with New Jersey law and the Federal Arbitration Act (FAA). The FAA and the NJAA provide for a court-appointed arbitrator if the designated arbitrator is unavailable. Id. at 141. The arbitration clause enables the parties to seek from a court “provisional remedies in aid of arbitration.” The language in the Agreement does not show the parties intended to forego arbitration if JAMS is unavailable. The designation of JAMS was not integral to the enforcement of the arbitration clause. Thus, the unavailability of JAMS does not invalidate the arbitration clause.

We next address plaintiffs’ arguments attacking the enforcement of the arbitration clause based on the doctrines of procedural and substantive unconscionability. In essence, plaintiffs argue requiring Johnson to read and sign an ambiguous contract of adhesion immediately before a birthday party left her with no other choice but to assent. Our Supreme Court has described the factors that constitute the doctrines of procedural and substantive unconscionability:

The defense of unconscionability, specifically, calls for a fact-sensitive analysis in each case, even when a contract of adhesion is involved. [The] Court has recognized that contracts of adhesion necessarily involve indicia of procedural unconscionability. [The Court has] identified, therefore, four factors as deserving of attention when a court is asked to declare a contract of adhesion unenforceable.

[I]n determining whether to enforce the terms of a contract of adhesion, [a court] look[s] not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties’ relative bargaining positions, [(3)] the degree of economic compulsion motivating the “adhering” party, and [(4)] the public interests affected by the contract. [Delta Funding Corp. v. Harris, 189 N.J. 28, 39-40 (2006) (internal citations omitted) (quoting Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 356 (1992)).]

Here, plaintiffs merely recycle their arguments relying on the Agreement’s alleged ambiguity without applying or analyzing the factors established by the Court in Delta Funding. We discern no basis, in fact or in law, to conclude this arbitration provision is substantively unconscionable. Finally, plaintiffs’ allegations that defendants acted intentionally and recklessly have no basis in fact and are not worthy of further comment by this court. Plaintiffs’ remaining argument lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

The order of the Law Division upholding the enforceability of defendants’ arbitration clause is affirmed. However, we vacate the part of the order that dismisses plaintiffs’ complaint with prejudice and remand the matter to the Law Division to stay any judicial proceedings related to this case pending the outcome of the arbitration. GMAC, 205 N.J. at 584 n.7; N.J.S.A. 2A:23B-7(g).

Affirmed in part, reversed in part, and remanded consistent with this opinion. We do not retain jurisdiction. ———

Notes:

[1] In the interest of clarity, we will occasionally also refer to plaintiffs by their names; we will refer to the child by his first name and his mother by her last name. No disrespect is intended.

[2] Although an order entered by the Law Division compelling or denying arbitration is appealable to this court as of right, pursuant to Rule 2:2-3(a)(3), the trial court must stay any judicial proceeding pending the outcome of the arbitration. The court may also limit the stay to arbitrable claims if other claims are severable. GMAC v. Pittella, 205 N.J. 572, 584 n.7 (2011) (citing N.J.S.A. 2A:23B-7(g)).

[3] In a certification submitted to the motion judge, Johnson averred the injury damaged “the growth plate in my son’s leg . . . and his leg did not continue to grow properly. He has undergone surgery to shorten the opposite leg and may need additional treatment in the future.”

[4] In October 2006, Governor Jon Corzine appointed Justice Zazzali to succeed Deborah T. Poritz as Chief Justice. Chief Justice Zazzali served in this capacity until June 17, 2007, when he reached the mandatory retirement age for all members of the New Jersey Judiciary.

———


One paragraph would have eliminated this lawsuit.

Badly written release and a bad attempt to tie two documents together almost cost outfitter

Hamric v. Wilderness Expeditions, Inc

State: Colorado, United States Court of Appeals, Tenth Circuit

Plaintiff: Alicia Hamric, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor

Defendant: Wilderness Expeditions, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2021

Summary

Badly written release and medical form with release language in them give the plaintiff the opportunity to win a lawsuit. However, a lawsuit where Colorado law is applied is going to support the release.

Facts

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

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

The Tenth Circuit Court of Appeals is an appellate court that sits in Denver. The Tenth Circuit hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The court, consequently, hears a few appeals of recreation cases.

This appealed covered four different legal issues. Three of the issues were procedural and won’t be reviewed. The fourth was the dismissal of the case by the lower-court magistrate on a motion for summary judgement because of the release.

The plaintiff argued the release should be read using Texas law because the release was read and signed in Texas.

There was no Jurisdiction and Venue Clause in the Release!

The defendant had the deceased sign two forms. One was a release, and the second was a medical form. Having a medical information formed signed is a quick give away that the defendant does not understand the legal issues involved. The defendant wrote both forms, so they conflicted with each other in some cases and attempted to tie the forms together. Neither really worked.

The plaintiff argued the forms were one because they conflicts would have made both forms basically invalid.

Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise, the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.

The plaintiff’s argument in many jurisdictions might have prevailed. However, the 10th circuit covers the outdoor recreation center of the universe, and state laws protect outdoor recreation, and outdoor recreation is a major source of income for these states. Consequently, any issues are going to lean towards protecting recreation.

After a lengthy review, the court found the forms were two different documents and ignored the medical form and the release like language in it.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI.

The next issue is what law should apply to determine the validity of the release. Choice of laws is a complete course you can take in law school. I still have my Choice of Laws’ textbook after all these years because it is a complicated subject that hinges on minutia in some cases to determine what court will hear a case and what law will be applied.

The case was filed in the Federal Court covering Colorado. Since the defendant was not a Texas business or doing business in Texas, the lawsuit needed to be in the defendant’s state. Federal Court was chosen because disputes between citizens of two states should be held in a neutral court, which are the federal courts. A Texan might not feel they are getting a fair deal if they have to sue in a Colorado state court. That is called the venue. What court sitting where, will hear the case.

So, the decision on what court to sue in was somewhat limited. However, that is not the end. Once the court is picked the next argument is what law will be applied to the situation. The plaintiff argued Texas Law. Texas has stringent requirements on releases. The defendant argued Colorado law, which has much fewer requirements for releases.

Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas.

Here is the court’s analysis on what states laws should apply.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

It is not a slam dunk for Colorado law. In this case, the plaintiff made a very good argument that Texas law should apply. The deceased was a Texas resident recruited in Texas by the defendant. The release had been given to the deceased in Texas, and he signed it in Texas. If the analysis ended there, Texas law would have applied.

There was more to the investigation the court is required to do.

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado.

This argument switched the discussion from applying Texas law to Colorado law.

Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

It is significant to note that the court looked at the issue of waiting until customers arrive in the state of Colorado to have them sign the release. The court intimated that doing so would put pressure on them to sign after already traveling to Colorado. Legally, that could be argued as duress, which voids a release or contract.

It is important to remember this point. If you are marketing out of state and book travel from out of state, you need to get your release in the hands of your out of state clients when they book the travel.

In a rare statement, the court also commented on the outdoor recreation industry in Colorado and the need for releases.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado.

So Now What?

This was a badly written set of documents. Probably the attempt was made to cover as many legal issues as possible as many was as possible. Writing to documents that both contained release language. However, as written here and in Too many contracts can void each other out; two releases signed at different times can render both release’s void.
Write too many documents with release language in them and you can void all the releases.

The second major disaster is not having a venue and jurisdiction clause. The only real attempt to win the plaintiff had, was the release did not have a venue and jurisdiction clause. Never sign any contract without one, or if signing a contract written by someone else, find out where you have to sue and what law is applied to the contract. It makes a major difference.

Sad, so much time, energy and money were wasted on poorly written contracts (Yes, a release is a contract).

Sadder yet the plaintiff died.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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Hamric v. Wilderness Expeditions, Inc.,

ALICIA HAMRIC, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor, Plaintiff – Appellant,

v.

WILDERNESS EXPEDITIONS, INC., Defendant-Appellee.

No. 20-1250

United States Court of Appeals, Tenth Circuit

July 26, 2021

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01442-NYW)

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, Texas (Stephen A. Justino, Boesen Law, Denver, Colorado, on the briefs), for Plaintiff – Appellant.

Malcolm S. Mead (Peter C. Middleton and Jacob R. Woods with him on the brief), Hall & Evans, Denver, Colorado, for Defendant – Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.

McHUGH, CIRCUIT JUDGE

Gerald Hamric, a Texas resident, joined a church group on an outdoor recreation trip to Colorado. The church group employed the services of Wilderness Expeditions, Inc. (“WEI”) to arrange outdoor activities. Before the outdoor adventure commenced, WEI required each participant, including Mr. Hamric, to complete a “Registration Form” and a “Medical Form.” On the first day, WEI led the church group on a rappelling course. In attempting to complete a section of the course that required participants to rappel down an overhang, Mr. Hamric became inverted. Attempts to rescue Mr. Hamric proved unsuccessful, and he died.

Alicia Hamric, Mr. Hamric’s wife, sued WEI for negligence. WEI moved for summary judgment, asserting the Registration Form and the Medical Form contained a release of its liability for negligence. Ms. Hamric resisted WEI’s motion for summary judgment in four ways. First, Ms. Hamric moved for additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Second, Ms. Hamric moved for leave to amend her complaint to seek exemplary damages based on willful and wanton conduct. Third, Ms. Hamric filed a motion for leave to disclose an expert out of time. Fourth, Ms. Hamric argued Texas law controlled the validity of the purported liability release in the Registration Form and the Medical Form, and additionally that the release was not conspicuous as required by Texas law.

In a single order, a magistrate judge addressed each of the pending motions. The magistrate judge first declined to grant leave to amend the complaint due to Ms. Hamric’s failure to (1) sustain her burden under Federal Rule of Civil Procedure 16(b) because the deadline for amendments had passed; and (2) make out a prima facie case of willful and wanton conduct as required by Colorado law to plead a claim seeking exemplary damages. Next, the magistrate judge concluded WEI was entitled to summary judgment, holding the liability release was valid under both Colorado law and Texas law. Finally, the magistrate judge denied as moot Ms. Hamric’s motions for additional discovery and to disclose an expert out of time.

We affirm the magistrate judge’s rulings. As to Ms. Hamric’s motion for leave to amend, a party seeking to amend a pleading after the deadline in a scheduling order for amendment must satisfy the standard set out by Federal Rule of Civil Procedure 16(b). But Ms. Hamric concedes she has never sought to satisfy the Rule 16(b) standard. Turning to the discovery motions, where this case hinges on the validity of the liability release and all facts necessary to this primarily legal issue appear in the record, we reject Ms. Hamric’s contentions that further discovery or leave to belatedly disclose an expert were warranted. Finally, while the magistrate judge’s summary judgment analysis was not free of error, we apply de novo review to that ruling. And, under de novo review, we conclude (1) relying on contract law to resolve the choice-of-law issue, as argued for by the parties, Colorado law, rather than Texas law, controls whether the Registration Form and the Medical Form contain a valid liability release; and (2) the forms contain a valid release for negligence by WEI, barring Ms. Hamric’s action.

I. BACKGROUND

A. The Rappelling Excursion, Mr. Hamric’s Death, and the Liability Release

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”[ 1]

The Registration Form has three sections. The first section requires the participant to provide personally identifiable information and contact information. The second section is entitled “Release of Liability & User Indemnity Agreement for Wilderness Expeditions, Inc.” App. Vol. I at 57, 83.[ 2] The text under this bold and underlined header reads, in full: I hereby acknowledge that I, or my child, have voluntarily agreed to participate in the activities outfitted by Wilderness Expeditions, Inc. I understand that the activities and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and I am cognizant of the risks and dangers inherent with the activities. I (or my child) and (is) fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility whether it is obvious or not. I understand and agree that any bodily injury, death, or loss of personal property and expenses thereof as a result of any, or my child’s, negligence in any scheduled or unscheduled activities associated with Wilderness Expeditions, Inc. are my responsibilities. I understand that accidents or illness can occur in remote places without medical facilities, physicians, or surgeons, and be exposed to temperature extremes or inclement weather. I further agree and understand that any route or activity chosen may not be of minimum risk, but may have been chosen for its interest and challenge. I agree to defend, indemnify, and hold harmless Wilderness Expeditions. Inc., the USDA Forest Service, Colorado Parks and Recreation Department, and any and all state or government agencies whose property the activities may be conducted on, and all of their officers, members, affiliated organizations, agents, or employees for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause. By signing my initials below, I certify this is a release of liability.

Id.[ 3] Immediately after this paragraph, the form reads, “Adult participant or parent/guardian initial here:(Initials).” Id. The third and final section of the form is entitled: “Adult Agreement or Parent’s/Guardian Agreement for Wilderness Expeditions, Inc.” Id. The text of this provision states: I understand the nature of the activities may involve the physical demands of hiking over rough terrain, backpacking personal and crew gear, and voluntarily climbing mountains to 14, 433 feet in elevation. Having the assurance of my, or my child’s, good health through a current physical examination by a medical doctor, I hereby give consent for me, or my child, to participate in the activities outfitted by Wilderness Expeditions, Inc. I have included in this form all necessary medical information about myself, or my child, that should be known by the leadership of the program. I assure my, or my child’s, cooperation and assume responsibility for my, or my child’s, actions. I understand that I am responsible for any medical expenses incurred in the event of needed medical attention for myself, or my child. I further agree that I will be financially responsible to repair or replace all items lost or abused by myself or my child. In the event of an emergency, I authorize my consent to any X-ray examination, medica1, dental, or surgical diagnosis, treatment, and/or hospital care advised and supervised by a physician, surgeon, or dentist licensed to practice. I understand that the designated next of kin will be contacted as soon as possible. By signing my initials below, I certify this is a release of liability.

Id. And, as with the second section, the form then provides a line for the participant or the parent or guardian of the participant to initial.

The Medical Form has four sections. The first section seeks information about the participant. The second section is entitled “Medical History.” Initially, this section asks the participant if he suffers from a list of medical conditions, including allergies, asthma, and heart trouble. If the participant does suffer from any medical conditions, the form requests that the participant explain the affirmative answer. Thereafter, the section includes the following language: Note: The staff will not administer any medications, including aspirin, Tums, Tylenol, etc. If you need any over the counter medications, you must provide them. Be sure to tell your staff members what medications you are taking. List any medications that you will have with you: Note about food: Trail food is by necessity a high carbohydrate, high caloric diet. It is high in wheat, milk products, sugar, com syrup, and artificial coloring/flavoring. If these food products cause a problem to your diet, you will be responsible for providing any appropriate substitutions and advise the staff upon arrival. * Doctor’s signature is required to participate. No other form can be substituted. By signing below a physician is verifying the medical history given above and approving this individual to participate.

Id. at 58, 84. The form then includes a section titled “Physician’s Evaluation.” Id. This section seeks certification of the participant’s medical capability to partake in the outdoor activities and asks the physician for contact information. It reads: The applicant will be taking part in strenuous outdoor activities that may include: backpacking, rappelling, hiking at 8-12, 000 feet elevation, and an all day summit climb up to 14, 433 feet elevation. This will include high altitude, extreme weather, cold water, exposure, fatigue, and remote conditions where medical care cannot be assured. The applicant is approved for participation. Physician Signature: ___ Date: ___ Physician Name: ___ Phone Number: ___ Office Address: ___ City: ___ State: ___ Zip: ___

Id. The final section of the form is entitled “Participant or Parent/Guardian Signature – All sections of these forms must be initialed or signed.” Id. The text of the section reads: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document[.] I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Id.

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

B. Procedural History

In the District of Colorado, Ms. Hamric commenced a negligence action against WEI, sounding in diversity jurisdiction. As a matter of right, Ms. Hamric amended her complaint shortly thereafter. See Fed. R. Civ. P. 15(a)(1)(A) (permitting plaintiff to file amended complaint “as a matter of course” within twenty-one days of serving original complaint). The parties, pursuant to 28 U.S.C. § 636(c), consented to a magistrate judge presiding over the case. WEI answered Ms. Hamric’s First Amended Complaint, in part raising the following affirmative defense: “Decedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation form which Defendant relied upon. The execution of these document [sic] bars or reduces [Ms. Hamric’s] potential recovery.” Id. at 31-32.

The magistrate judge entered a Scheduling Order adopting several deadlines: (1) August 31, 2019, for amendments to the pleadings; (2) January 31, 2020, for Ms. Hamric to designate her expert witnesses; and (3) April 10, 2020, for the close of all discovery. The Scheduling Order also noted WEI’s defense based on the purported liability release, stating “[t]he parties anticipate that mediation . . . may be useful to settle or resolve the case after meaningful discovery and summary judgment briefing on the issue of the validity and enforceability of the liability release.” Id. at 38 (emphasis added). Finally, the Scheduling Order concluded with language reminding the parties that the deadlines adopted by the order “may be altered or amended only upon a showing of good cause.” Id. at 42 (italicized emphasis added).

In November 2019, after the deadline for amendments to the pleadings but before the discovery deadlines, WEI moved for summary judgment based on its affirmative defense that both the Registration Form and Medical Form contained a liability release that barred Ms. Hamric’s negligence claim. In support of its motion, WEI contended Colorado law controlled the interpretation and validity of the liability release. Ms. Hamric opposed summary judgment, arguing that because Mr. Hamric completed the forms in Texas, a Colorado court would apply Texas law and that, under Texas law, the liability release was not adequately conspicuous to be valid.

Ms. Hamric also sought to avoid disposition of WEI’s motion for summary judgment and dismissal of her action by filing three motions of her own. First, Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) for additional time to conduct discovery, contending further discovery would, among other things, reveal details about Mr. Hamric’s completion of the forms and whether Colorado or Texas law should control the interpretation and validity of the purported liability release. Second, in February 2020, Ms. Hamric moved pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a second amended complaint to seek exemplary damages under § 13-21-102 of the Colorado Revised Statutes based on new allegations of WEI’s willful and wanton conduct.[ 4] Ms. Hamric’s motion to amend, however, did not cite Federal Rule Civil Procedure 16(b) or seek leave to amend the August 31, 2019, Scheduling Order deadline for amendments to the pleadings. Third, in March 2020, Ms. Hamric moved for leave to disclose out of time a “‘Rappelling/Recreational Activities Safety’ expert.” App. Vol. II at 37. Ms. Hamric contended the expert’s opinions about the training, knowledge, and rescue efforts of the WEI guides supported her contention in her proposed second amended complaint that WEI acted in a willful and wanton manner.

The magistrate judge disposed of the four pending motions in a single order. Starting with Ms. Hamric’s motion for leave to amend her complaint, the magistrate judge concluded Ms. Hamric (1) “failed to meet her burden under Rule 16(b) of establishing good cause to generally amend the operative pleading” and (2) had not made out a prima facie case of wanton and willful conduct. Id. at 94. The magistrate judge then turned to WEI’s motion for summary judgment. The magistrate judge concluded WEI’s affirmative defense raised an issue sounding in contract law such that principles of contract law controlled the choice-of-law analysis. Applying contract principles, the magistrate judge determined that although Texas law imposed a slightly more rigorous standard for enforcing a liability release, the difference between Texas law and Colorado law was not outcome-determinative and the court could, therefore, apply Colorado law. The magistrate judge read Colorado law as holding that a liability release is valid and enforceable “so long as the intent of the parties was to extinguish liability and this intent was clearly and unambiguously expressed.” Id. at 106 (citing Heil Valley Ranch v. Simkin, 784 P.2d 781, 785 (Colo. 1989)). Applying this standard, the magistrate judge held the liability release used clear and simple terms such that, even though Mr. Hamric was inexperienced at rappelling, the release was valid and foreclosed Ms. Hamric’s negligence claim. Therefore, the magistrate judge granted WEI’s motion for summary judgment. And, having denied Ms. Hamric’s motion for leave to amend and granted WEI’s motion for summary judgment, the magistrate judge denied both of Ms. Hamric’s discovery motions as moot.

Ms. Hamric moved for reconsideration, which the magistrate judge denied. Ms. Hamric timely appealed.

II. DISCUSSION

On appeal, Ms. Hamric contests the denial of her motion for leave to amend and the grant of summary judgment to WEI. Ms. Hamric also tacitly challenges the magistrate judge’s denial of her discovery motions. We commence our analysis with Ms. Hamric’s motion for leave to amend, holding the magistrate judge did not abuse her discretion in denying the motion where the motion was filed after the Scheduling Order’s deadline for amendments to pleadings and Ms. Hamric did not attempt to satisfy Federal Rule of Civil Procedure 16(b)’s standard for amending a deadline in a scheduling order. Next, we discuss Ms. Hamric’s two discovery motions, concluding the magistrate judge did not abuse her discretion by denying the motions because (1) WEI’s motion for summary judgment presented a largely legal issue on which all facts necessary for resolution already appeared in the record; and (2) consideration of the proposed expert’s opinions potentially capable of supporting allegations of willful and wanton conduct was mooted upon Ms. Hamric failing to satisfy Rule 16(b)’s standard for amending her complaint to allege such conduct. Finally, we analyze WEI’s motion for summary judgment. Although the magistrate judge’s decision was not free of error, the errors are not outcome determinative on appeal given our de novo standard of review. Exercising de novo review, we conclude Colorado law governs the validity of the liability release. And considering the entirety of both the Registration Form and the Medical Form, we conclude the liability release satisfies the factors in Colorado law for enforceability. Therefore, we affirm the magistrate judge’s grant of summary judgment.

A. Ms. Hamric’s Motion for Leave to Amend

1. Standard of Review

“We review for abuse of discretion a district court’s denial of a motion to amend a complaint after the scheduling order’s deadline for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015). “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Id. (quotation marks omitted). “A district court also abuses its discretion when it issues an arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Id. (internal quotation marks omitted).

2. Analysis

“A party seeking leave to amend after a scheduling order deadline must satisfy both the [Federal Rule of Civil Procedure] 16(b) and Rule 15(a) standards.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Under the former of those two rules, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To satisfy this standard a movant must show that “the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotation marks omitted). We have observed the “good cause” standard for amending deadlines in a scheduling order is “arguably [a] more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).

In moving for leave to file a second amended complaint, Ms. Hamric discussed Federal Rule of Civil Procedure 15 and how Colorado law did not permit a plaintiff to seek exemplary damages until after commencement of discovery. But Ms. Hamric did not advance an argument for amending the Scheduling Order as required by Rule 16(b). Nor does Ms. Hamric cite Rule 16(b) in her briefs on appeal, much less explain how she satisfied, in her papers before the magistrate judge, the Rule 16(b) standard. In fact, Ms. Hamric conceded at oral argument that, before the magistrate judge, she sought only to amend her complaint and “did not seek to amend the scheduling order.” Oral Argument at 7:42-7:46; see also id. at 7:31-9:10. Ms. Hamric also conceded at oral argument that she had not advanced an argument on appeal regarding satisfying Rule 16(b).

This omission by Ms. Hamric is fatal to her argument. Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend. Husky Ventures, Inc. v. B55 Invs. Ltd., 911 F.3d 1000, 1019-20 (10th Cir. 2018). Even if a party who belatedly moves for leave to amend a pleading satisfies Rule 15(a)’s standard, the party must also obtain leave to amend the scheduling order. But Rule 16(b) imposes a higher standard for amending a deadline in a scheduling order than Rule 15(a) imposes for obtaining leave to amend a complaint. Thus, as Husky Ventures suggests, a party’s ability to satisfy the Rule 15(a) standard does not necessitate the conclusion that the party could also satisfy the Rule 16(b) standard. Id. at 1020; see also Bylin, 568 F.3d at 1231 (observing that Rule 16(b) imposes “an arguably more stringent standard than the standards for amending a pleading under Rule 15”). Accordingly, where Ms. Hamric did not attempt to satisfy the Rule 16(b) standard for amending the Scheduling Order, we affirm the district court’s denial of Ms. Hamric’s motion for leave to amend.

B. Ms. Hamric’s Discovery Motions

After WEI moved for summary judgment, Ms. Hamric filed a pair of discovery-related motions-a motion for additional discovery before disposition of WEI’s motion for summary judgment and a motion to disclose an expert out of time. The magistrate judge denied both motions as moot. After stating the applicable standard of review, we consider each motion, affirming the magistrate judge’s rulings.

1. Standard of Review

We review the denial of a Federal Rule of Civil Procedure 56(d) motion for additional discovery for an abuse of discretion. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). Likewise, we review the denial of a motion to revisit a scheduling order and allow the disclosure of an expert out of time for an abuse of discretion. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253-54 (10th Cir. 2011). “We will find an abuse of discretion when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Ellis, 779 F.3d at 1192 (internal quotation marks omitted). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks omitted).

2. Analysis

a. Motion for additional discovery

Before the April 10, 2020, deadline for discovery, WEI filed its motion for summary judgment based on the liability release. Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) to delay resolution of WEI’s motion for summary judgment, asserting additional discovery would allow her to learn further information about the liability release. The magistrate judge denied the motion as moot, concluding further discovery was not needed to assess the validity of the liability release.

Under Rule 56(d), a party opposing a motion for summary judgment may seek additional time for discovery. To do so, a party must “submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). “[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). “Requests for further discovery should ordinarily be treated liberally.” Cerveny, 855 F.3d at 1110. “But relief under Rule 56(d) is not automatic.” Id. And Rule 56’s provision allowing a non-moving party to seek additional discovery before disposition on a motion for summary judgment “is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990); see also Ellis, 779 F.3d at 1207-08 (affirming denial of Rule 56(d) motion where party “required no further discovery to respond to the . . . summary-judgment motion” and additional discovery sought was speculative).

Through the affidavit supporting her Rule 56(d) motion, Ms. Hamric sought four areas of additional discovery. First, she sought discovery on “the drafting of the purported liability release forms” and the meaning of language on the forms. App. Vol. I at 94. Regardless of whether Colorado or Texas law applies, the four corners of the Registration Form and Medical Form, not WEI’s thought process when drafting the forms, controls the validity of the liability release. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo. 1998) (requiring that intent of parties to extinguish liability be “clearly and unambiguously expressed” (quoting Heil Valley Ranch, 784 P.2d at 785)); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”). Therefore, the drafting process employed by WEI and its understanding of the language of the forms is not relevant to whether the forms included sufficiently specific language to foreclose a claim for negligence.

Second, Ms. Hamric sought to discover information about WEI’s process for distributing the forms and how the church group members, including Mr. Hamric, completed and submitted the forms. Ms. Hamric also requested time to discover matters related to the choice-of-law issue, including the “place of contracting,” “the place of performance,” and “the domicile, residence nationality, place of incorporation and place of business of the parties.” App. Vol. I at 95. Information on these matters, however, was known to Ms. Hamric prior to the magistrate judge’s summary judgment ruling. For instance, the record shows Mr. Hamric received and completed the forms in Texas a few months before the WEI-led excursion and that the church group provided WEI the completed forms upon its arrival at WEI’s location in Colorado. Accordingly, there was no need to delay summary judgment proceedings to discover matters already known to the parties. See Ellis, 779 F.3d at 1207-08.

Third, Ms. Hamric, as part of a challenge to the authenticity of the forms, initially sought to discover information regarding anomalies and alterations on the forms attached to WEI’s motion for summary judgment, as well as evidence of fraud by WEI. Subsequent to Ms. Hamric filing her motion for additional discovery, WEI provided her the original forms signed by Mr. Hamric, and she withdrew her challenge to the authenticity of the forms. Accordingly, by the time the district court ruled on WEI’s motion for summary judgment and Ms. Hamric’s motion for additional discovery, the requests for discovery regarding the authenticity of the forms was moot.

Fourth, Ms. Hamric sought time to discover “evidence of willful and wanton conduct by Defendant WEI and/or by its agents, servants and/or employees.” Id. Discovery on this matter, however, became moot with the magistrate judge’s denial of Ms. Hamric’s motion for leave to amend her complaint to seek exemplary damages and add allegations of willful and wanton conduct, a ruling we affirm. See supra at 12-14, Section II(A).

Having considered each additional discovery request advanced by Ms. Hamric, we conclude the magistrate judge did not abuse her discretion by ruling on WEI’s motion for summary judgment without permitting Ms. Hamric additional time for discovery. Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s Rule 56(d) motion.

b. Motion for leave to disclose expert out of time

Ms. Hamric moved for leave to disclose a “‘Rappelling/Recreational Activities Safety’ expert” out of time. App. Vol. II at 37. Attached to the motion was a Federal Rule of Civil Procedure 26(a)(2) expert disclosure, offering opinions about the alleged negligent and/or willful and wanton conduct of WEI and its employees. The magistrate judge denied this motion as moot. Considering the magistrate judge’s other rulings and our holdings on appeal, we conclude the magistrate judge did not abuse her discretion. Any opinion offered by the expert as to willful and wanton conduct lost relevance with the denial of Ms. Hamric’s motion for leave to amend her complaint to add allegations of willful and wanton conduct and to seek exemplary damages-a ruling we affirmed supra at 12-14, Section II(A). And the expert’s opinion about WEI acting in a negligent manner lost relevance upon the magistrate judge concluding the liability release was valid and barred Ms. Hamric from proceeding on her negligence claim-a ruling we affirm infra at 19-37, Section II(C). Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s motion for leave to disclose an expert out of time.

C. WEI’s Motion for Summary Judgment

After stating our standard of review, we discuss Ms. Hamric’s contentions that the magistrate judge (1) applied the wrong standard when considering WEI’s affirmative defense based on the liability release and (2) resolved issues of disputed fact in favor of WEI. Although we conclude the magistrate judge’s ruling is not free of error, the errors do not bind us because we need not repeat them when conducting our de novo review of the grant of summary judgment. Thus, we proceed to consider the validity of the liability release. In conducting our analysis, we hold that, where the parties contend contract principles provide the framework for our choice-of-law analysis, Colorado law governs the validity of the release.[ 5] And we conclude that, under Colorado law, the liability release is valid and enforceable so as to foreclose Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo. Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson, 477 U.S. at 250. “In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted). For purposes of summary judgment, “[t]he nonmoving party is entitled to all reasonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). Finally, “we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).

2. Alleged Errors by the Magistrate Judge

Ms. Hamric argues the magistrate judge (1) applied the incorrect standard when considering WEI’s affirmative defense and (2) resolved disputed issues of material fact in favor of WEI. We consider each contention in turn.

a. Standard applicable to affirmative defenses

Ms. Hamric contends the magistrate judge announced an incorrect standard of review and impermissibly shifted evidentiary burdens onto her, as the non-moving party. The disputed language in the magistrate judge’s opinion states: When, as here, a defendant moves for summary judgment to test an affirmative defense, it is the defendant’s burden to demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Once the defendant meets its initial burden, the burden shifts to the nonmovant to put forth sufficient evidence to demonstrate the essential elements of her claim(s), see Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), and to “demonstrate with specificity the existence of a disputed fact” as to the defendant’s affirmative defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

App. Vol. II at 100 (emphasis added). Ms. Hamric takes issue with the emphasized phrase.

Nothing on the pages the magistrate judge cited from Anderson and Simms requires a plaintiff responding to a motion for summary judgment based on an affirmative defense to identify evidence supporting each element of her claim. See Anderson, 477 U.S. at 248 (requiring nonmoving party in face of “properly supported motion for summary judgment” to “‘set forth specific facts showing that there is a genuine issue for trial'” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968))); Simms, 165 F.3d at 1326, 1328 (discussing summary judgment standard in context of employment discrimination claim and burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In fact, the standard announced by the magistrate judge would unnecessarily require a plaintiff, in response to a motion for summary judgment based on an affirmative defense, to identify evidence supporting elements of her claim never drawn into question by the defendant. Placing such a burden on a plaintiff is all the more problematic where, as here, the parties contemplated a bifurcated summary judgment process initially focused on the validity of the liability release, and WEI filed its motion for summary judgment before the close of discovery.

We have previously stated that a district court errs by requiring a party opposing summary judgment based on an affirmative defense to “establish at least an inference of the existence of each element essential to the case.” Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quotation marks omitted). We reaffirm that conclusion today. To defeat a motion for summary judgment, a plaintiff, upon the defendant raising and supporting an affirmative defense, need only identify a disputed material fact relative to the affirmative defense. Id.; Hutchinson, 105 F.3d at 564; see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015) (discussing defendant’s burden for obtaining summary judgment based on an affirmative defense). Only if the defendant also challenges an element of the plaintiff’s claim does the plaintiff bear the burden of coming forward with some evidence in support of that element. See Tesone, 942 F.3d at 994 (“The party moving for summary judgment bears the initial burden of showing an absence of any issues of material fact. Where . . . the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden by providing ‘affirmative evidence that negates an essential element of the nonmoving party’s claim’ or by ‘demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.’ If the movant makes this showing, the burden then shifts to the nonmovant to ‘set forth specific facts showing that there is a genuine issue for trial.'” (first quoting Celotex Corp., 477 U.S. at 330, then quoting Anderson, 477 U.S. at 250)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (if summary judgment movant carries its initial burden of showing a lack of evidence in support of an essential element of plaintiff’s claim, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts” supporting the essential element (internal quotation marks omitted)).

The magistrate judge’s erroneous statement regarding Ms. Hamric’s burden, however, does not foreclose our ability to further review the grant of summary judgment. Rather, in accord with the applicable de novo standard of review, we review WEI’s motion for summary judgment under the standard that “should have been applied by the [magistrate judge].”[ 6] Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1266 (10th Cir. 2002) (quotation marks omitted).

b. Resolution of disputed issues of material fact

Ms. Hamric contends the magistrate judge impermissibly resolved two issues of disputed fact in WEI’s favor. We discuss each asserted factual issue in turn, concluding factual disputes existed and the magistrate judge incorrectly resolved one of the disputes against Ms. Hamric. However, even if this factual dispute were material, we may proceed to analyze the validity of the liability release after resolving the dispute in Ms. Hamric’s favor. See Lincoln, 900 F.3d at 1180 (“In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” (internal quotation marks omitted)).

i. Language of Registration Form and Medical Form

In moving for summary judgment, WEI’s brief contained edited versions of the Registration Form and Medical Form that focused the reader’s attention on the language most pertinent to Mr. Hamric’s participation in the outdoor excursion and the release of liability. For instance, the version of the forms in WEI’s brief left out phrases such as “(or my child)” and the accompanying properly-tensed-and-conjugated verb that would apply if the forms were completed by a parent or guardian of the participant, rather than by the participant himself. Compare App. Vol. I at 46, with id. at 57, 83.

Although WEI and Ms. Hamric attached full versions of the forms to their papers on the motion for summary judgment, the magistrate judge’s quotation of the language in the forms mirrored that which appeared in WEI’s brief. Ms. Hamric contends the magistrate judge, in not quoting the full forms, resolved a dispute of fact regarding the language of the forms in WEI’s favor. It is not uncommon for a court to focus on the pertinent language of a contract or liability release when putting forth its analysis. In this case, Ms. Hamric claims the forms should be reviewed on the whole. Although there is no indication the magistrate judge did not review the forms in their entirety, despite her use of incomplete quotations, we attach full versions of the Registration Form and Medical Form completed by Mr. Hamric as an appendix to this opinion. And we consider all the language on the forms when assessing whether the forms contain a valid liability release.

ii. Registration Form and Medical Form as single form

The magistrate judge viewed the Registration Form and the Medical Form as a single, “two-page agreement.” App. Vol. II at 103; see also id. at 101 (“Adult customers are required to execute a two-page agreement with WEI before they are permitted to participate in WEI-sponsored activities. The first page of the agreement is a ‘Registration Form’, followed by a ‘Medical Form’ on page two.”). Ms. Hamric contends the two forms are separate agreements, not a single agreement. While a jury could have concluded that the Registration Form and Medical Form were separate agreements, this dispute of fact is not material given applicable law regarding the construction of agreements that are related and simultaneously executed.

It is clear from the record that a participant needed to complete both forms before partaking in the WEI-lead excursion. Further, while the Medical Form required a signature and a date, the Registration Form required only that a participant place his initials on certain lines, suggesting the forms were part of a single agreement. However, the forms do not contain page numbers to indicate they are part of a single agreement. Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

App., Vol. I at 58, 84 (emphases added). Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.[ 7] Accord Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018) (describing the cannon of expressio unius est exclusio alterius as providing “that the ‘expression of one item of an associated group or series excludes another left unmentioned'” and that “the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” (quoting NLRB v. SW Gen., Inc., 137 S.Ct. 929, 940 (2017))). Thus, a reasonable jury could have found the Registration Form and the Medical Form were separate agreements.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI. Under Colorado law, it is well established that a court may, and often must, construe two related agreements pertaining to the same subject matter as a single agreement. See Bledsoe v. Hill, 747 P.2d 10, 12 (Colo.App. 1987) (“If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Although it is desirable for the documents to refer to each other, there is no requirement that they do so.” (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist., 677 P.2d 320 (Colo. 1984); Harty v. Hoerner, 463 P.2d 313 (Colo. 1969); Westminster v. Skyline Vista Dev. Co., 431 P.2d 26 (Colo. 1967))).[ 8] Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

3. Choice-of-Law Analysis

At the heart of WEI’s motion for summary judgment was whether Colorado or Texas law controls and whether the release is valid under the appropriate law. On appeal, Ms. Hamric contends “contract principles” control the choice-of-law analysis because WEI’s affirmative defense “was a contract issue on a purported agreement to release liability.” Opening Br. at 26-27. Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas. WEI agrees that if contract principles govern the choice-of-law issue, the Restatement (Second) on Conflict of Laws provides the appropriate factors for this court to consider. But WEI contends (1) the liability release is valid under both Colorado and Texas law and (2) the relevant factors in §§ 6 and 188 of the Restatement favor application of Colorado law if this court is inclined to resolve the conflict-of-law issue.

Outdoor recreation and tourism is a growing industry in Colorado, as well as several other states within our circuit. And many outdoor tourism outfitters, like WEI, require participants to complete forms containing liability releases. See Redden v. Clear Creek Skiing Corp., ___ P.3d ___, 2020 WL 7776149, at *2 (Colo.App. Dec. 31, 2020); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 947-48 (Colo.App. 2011); see also Dimick v. Hopkinson, 422 P.3d 512, 515-16 (Wyo. 2018); Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 986 (Utah 2013); Beckwith v. Weber, 277 P.3d 713, 716-17 (Wyo. 2012). With the prevalence and recurrence of questions regarding the validity of liability releases in mind, and viewing the choice-of-law issue as sounding in contract law as urged by the parties, we consider whether the law of the state where the outdoor recreation company is based and the outdoor excursion occurs controls or whether the law of the state of residence of the participant controls.

a. Framework for choice-of-law analysis

“In a diversity action we apply the conflict-of-laws rules of the forum state.” Kipling v. State Farm Mut. Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014). “This is true even when choice of law determinations involve the interpretation of contract provisions.” Shearson Lehman Brothers, Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). Accordingly, this court must look to Colorado choice-of-law rules to determine if Colorado or Texas law applies.

“Colorado follows the Restatement (Second) of Conflict of Laws (1971) . . . for both contract and tort actions,” Kipling, 774 F.3d at 1310 (citing Wood Brothers Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979); First Nat’l Bank v. Rostek, 514 P.2d 314, 319-20 (Colo. 1973)). Absent a forum-state “statutory directive,” the Restatement advises a court to consider seven factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws: Choice-of-Law Principles § 6 (Am. L. Inst. 1971). The commentary to § 6 identifies the first factor as “[p]robably the most important function of choice-of-law rules” because choice-of-law rules are designed “to further harmonious relations between states and to facilitate commercial intercourse between them.” Id. § 6 cmt. d. Meanwhile, the second factor takes into account any special interests, beyond serving as the forum for the action, that the forum state has in the litigation. Id. § 6 cmt. e. As to the fourth factor-“the protection of justified expectations, “- the comments to § 6 note: This is an important value in all fields of the law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state.

Id. § 6 cmt. g.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws: Law Governing in Absence of Effective Choice by the Parties § 188.

b. Colorado law controls

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado. Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Id. § 188 cmt. e. Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release. See Scoular Co. v. Denney, 151 P.3d 615, 619 (Colo.App. 2006) (discussing means of accepting an offer and stating “general rule that communication is required of the acceptance of the offer for a bilateral contract”). The second contact consideration is not applicable because the terms of the Medical Form precluded alteration, and there is no suggestion in the record Mr. Hamric attempted to negotiate the terms of the liability release before signing the forms. The third and fourth factors heavily favor application of Colorado law because WEI provides outdoor excursion services in Colorado, not Texas, and Mr. Hamric knew such when he signed the forms. Finally, the fifth factor is neutral because Mr. Hamric was a resident of Texas and WEI has its place of business in Colorado. With three factors favoring Colorado law, one factor inapplicable, and one factor neutral, the overall weight of the § 188 factors favors application of Colorado law.

Concluding that both § 6 and § 188 of the Restatement strongly support application of Colorado law, we hold that a Colorado court would choose to apply Colorado law, not Texas law, when determining whether the Registration Form and Medical Form contain a valid liability release. We, therefore, proceed to that analysis.

4. The Liability Release Is Valid under Colorado Law

Under Colorado law, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, 784 P.2d at 783.But, such “[e]xculpatory agreements are not necessarily void,” as courts recognize that “[t]hey stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” Id. at 784.In assessing the validity of a release, “a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see also Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (a release agreement “must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into”).

Ms. Hamric challenges only WEI’s ability to show “whether the intention of the parties is expressed in clear and unambiguous language.”[ 9] “To determine whether the intent of the parties is clearly and unambiguously expressed, [the Colorado Supreme Court has] examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d at 467. In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.” Salazar v. On the Trail Rentals, Inc., Civil Action No. 11-cv-00320-CMA-KMT, 2012 WL 934240, at *4 (D. Colo. Mar. 20, 2012) (deriving factors from Heil Valley Ranch, 784 P.2d at 785; Chadwick, 100 P.3d at 467); see also Eburn v. Capitol Peak Outfitters, Inc., 882 F.Supp.2d 1248, 1253 (D. Colo. 2012) (citing factors set forth in Salazar). Each and every factor, however, need not be satisfied for a court to uphold the validity of a liability release, as the Colorado Supreme Court has upheld the validity of a release where the signor was a novice at the outdoor activity in question. See B & B Livery, Inc., 960 P.2d at 138 (upholding liability release without finding every factor favored validity); id. at 139-40 (Hobbs, J., dissenting) (discussing signor’s inexperience riding horses).

The first four factors taken from Heil Valley Ranch and Chadwick support the validity of the liability release in the Registration Form and Medical Form. The forms span a mere two pages, with language pertinent to the liability release in only four sections of the forms. And those four sections are generally free of legal jargon. For instance, in detailing the scope of the release, the Registration Form required the participant/signor to “hold harmless Wilderness Expeditions, Inc. . . . for any injury or death caused by or resulting from my or my child’s participation in the activities.”[ 10] App. Vol. I at 57, 83. And this language comes after the form describes several of the risks associated with the activities, including “that accidents or illness can occur in remote places without medical facilities” and that “any route or activity chosen [by WEI] may not be of minimum risk, but may have been chosen for its interest and challenge.” Id. The Registration Form also twice places bolded emphasis on the fact that a participant was releasing WEI from liability: “By signing my initials below, I certify this is a release of liability.”Id. Finally, although not explicitly a factor identified by Colorado courts, we observe WEI provided the church group with the forms, and Mr. Hamric completed the forms, months before the booked excursion. Thus, if Mr. Hamric personally had difficulty understanding any of the language on the forms, he had ample time to contact WEI for an explanation or consult legal counsel.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver. See B & B Livery, Inc., 960 P.2d at 138-39. And, where the liability release between Mr. Hamric and WEI is otherwise clear, specific, and uncomplicated, Mr. Hamric’s lack of experience rappelling is insufficient to defeat the release as a whole.

Accordingly, applying Colorado law, we hold the liability release is valid and its enforcement bars Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment in favor of WEI.

III. CONCLUSION

We affirm the denial of Ms. Hamric’s motion for leave to amend her complaint because the magistrate judge did not abuse her discretion where Ms. Hamric did not attempt to satisfy the Federal Rule of Civil Procedure 16(b) standard for amending the Scheduling Order. We also affirm the denial of Ms. Hamric’s discovery motions, holding the magistrate judge did not abuse her discretion where the items Ms. Hamric sought to discover were either already in the record, were not necessary to determine the validity of the liability release, or went to Ms. Hamric’s effort to obtain exemplary damages, which she could not pursue given the denial of her motion for leave to amend her complaint. Finally, applying de novo review to the choice-of-law issue and the issue regarding the validity of the liability release, we conclude Colorado law applies and the release is valid and enforceable under that law. Therefore, we affirm the magistrate judge’s grant of summary judgment to WEI.

———

Notes:

[ 1]Here, we summarize the Registration Form and the Medical Form. Copies of the full forms, taken from the Appendix submitted by Ms. Hamric, are attached to this opinion. We rely on the full forms, and all of the language thereon, when conducting our analysis. Further, as discussed infra at 25-27, Section II(C)(2)(b)(ii), while the Registration Form and Medical Form could be viewed as separate forms, Colorado law requires us to consider both forms together when conducting our analysis.

[ 2]Throughout our opinion, we cite simultaneously to the Registration Form or Medical Form attached to WEI’s motion for summary judgment, App. Vol. I at 57- 58, and the Registration Form or Medical Form attached to Ms. Hamric’s response to WEI’s motion for summary judgment, id. at 83-84. Although the language of the two sets of forms are identical, the clarity of the text varies somewhat, seemingly based on the proficiency of the respective copy machines used by the parties.

[ 3]In quoting the forms, we seek to replicate the font size, spacing, and bolding of the text of the Registration Form and Medical Form completed by Mr. Hamric.

[ 4] Under Colorado law: A claim for exemplary damages in an action governed by [§ 13-21-102 of the Colorado Revised Statutes] may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue.

Colo. Rev. Stat. § 13-21-102(1.5)(a).

[ 5]Although Ms. Hamric’s action sounds in tort law, on appeal, the parties do not contend that tort principles provide the framework for the choice-of-law analysis regarding the liability release. Thus, we reach no conclusion as to whether Colorado law or Texas law would govern if tort principles played a role in the choice-of-law analysis.

[ 6]While the magistrate judge incorrectly stated the standard governing WEI’s motion for summary judgment, it is not apparent the magistrate judge’s analysis and conclusion that WEI was entitled to summary judgment hinged on Ms. Hamric’s failure to identify evidence supporting each element of her negligence claim. Rather, the magistrate judge correctly granted WEI summary judgment based on the liability release and WEI’s affirmative defense.

[ 7]WEI has advanced inconsistent positions on whether the Registration Form and Medical Form comprised a single agreement. Although on appeal WEI argues the forms constitute a single agreement releasing liability, WEI’s Answer to Ms. Hamric’s Complaint treats the two forms as separate agreements, stating that “[d]ecedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation.” App. Vol. I at 32 (emphasis added).

[ 8]Although we conclude that Colorado law, not Texas law, controls the validity of the liability release, infra at 28-33, Section II(C)(3), Texas law likewise permits a court to read separate but related documents together when determining the intent of the parties, see Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (“The City’s argument ignores well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other, and that a court may determine, as a matter of law, that multiple documents comprise a written contract. In appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument.” (footnotes omitted)).

[ 9]Ms. Hamric also argues that the question of whether Mr. Hamric and WEI entered into a liability release was a question of fact for a jury. But Ms. Hamric withdrew her fact-based challenge to the authenticity of the forms. Further, under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). And, where a liability release has force only if it is “clear and unambiguous,” id., the question of the existence of a liability release and its validity are one in the same because if the language relied on by a defendant does not form a valid release, then no liability release exists.

[ 10] The omitted language marked by the ellipses also required a signor/participant to hold federal and state agencies harmless for injuries or death that might occur as a result of WEI-led activities on federal or state land. Like the rest of the release, this language is plain and clear such that any reasonably educated individual would understand the nature of the release as to these third parties.


One paragraph would have eliminated this lawsuit.

Badly written release and a bad attempt to tie two documents together almost cost the defendant outfitter.

Hamric v. Wilderness Expeditions, Inc

State: Colorado, United States Court of Appeals, Tenth Circuit

Plaintiff: Alicia Hamric, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor

Defendant: Wilderness Expeditions, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2021

Summary

Deceased died while repelling with the defendant and surviving spouse sued Colorado company in Colorado but attempted to use Texas law, where the release was signed, as a way to void the release.

Facts

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. [emphasize added]

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

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

The Tenth Circuit Court of Appeals is an appellate court that sits in Denver. The Tenth Circuit hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming federal district courts. The court, consequently, hears a few appeals of recreation cases because of Colorado, Utah, New Mexico and Wyoming recreation activities.

This appealed covered four different legal issues. Three of the issues were procedural and won’t be reviewed here. The fourth was the dismissal of the case by the lower-court magistrate on a motion for summary judgement because of the release.

The plaintiff argued the release should be read using Texas law because the release was read and signed in Texas.

There was no Jurisdiction and Venue Clause in the Release!

The defendant had the deceased sign two forms. One was a release, and the second was a medical form. Neither form had a venue or jurisdiction clause. Having a medical information formed signed is a quick give away that the defendant does not understand the legal issues involved. The defendant wrote both forms, so they conflicted with each other in some cases and attempted to tie the forms together. Neither really worked.

The plaintiff argued the forms were one because they conflicts would have made both forms basically invalid.

Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise, the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.

However, after a lengthy review, the court found the forms were two different documents and ignored the medical form and the release like language in it.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI.

The next issue is what law should apply to determine the validity of the release. Choice of laws is a compete course you can take in law school. I still have my Choice of Laws’ textbook after all these years because it is a complicated subject that hinges on minutia in some cases to determine what court will hear a case and what law will be applied.

The case was filed in the Federal Court covering Colorado. Since the defendant was not a Texas business or doing business in Texas, the lawsuit needed to be in the defendant’s state. Federal Court was chosen because disputes between citizens of two states should be held in a neutral court, which is the federal courts. A Texan might not feel they are getting a fair deal if they have to sue in a Colorado state court. That is called the venue. What court sitting where will hear the case.

If the defendant had operated in Texas, been served in Texas or had a history of actively looking for clients in Texas this would have been a Texas lawsuit, probably with a different outcome.

So, the decision on what court to sue was somewhat limited. However, that is not the end. Once the court is picked, venue, the next argument is what law will be applied to the situation. The Plaintiff argued Texas Law. Texas has stringent requirements on releases. If Texas law was applied to the release, there was a chance the release would be void under Texas law. The defendant argued Colorado law, which has much fewer requirements for releases.

Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas.

Here is the court’s analysis on what states laws should apply.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

It is not a slam dunk for Colorado law. In this case, the plaintiff made a very good argument that Texas law should apply. The deceased was a Texas resident recruited in Texas by the defendant. The release had been given to the deceased in Texas, and he signed it in Texas. If the analysis ended there Texas law would have applied.

However, there was more to the investigation the court is required to do.

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado.

Honestly, the trial court and appellate court bent over backwards to help this defendant.

This argument switched the discussion from applying Texas law to Colorado law.

Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law; such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

It is significant to note that the court looked at the issue of waiting until customers arrive in the state of Colorado to have them sign the release. The court intimated that doing so would put pressure on them to sign after already traveling to Colorado. Legally, that could be argued as duress, which voids a release or contract.

It is these small statements in decisions that must be watched and remembered so that in the future they are not used to void a release. You must have your clients sign a release as soon as possible and waiting until they travel to Colorado maybe to late to have the release survive in court.

In a rare statement, the court also commented on the outdoor recreation industry in Colorado and the need for releases.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado.

The final analysis the court discussed on the issue was the legal issue of binding effect. When a contract does define what is required to create the contract, such as the signature of both parties to the contract, then the last act that gives life or that is necessary to form the contract is considered the point when the contract was valid. Where that last act occurs is the place where the contract should be litigated and the law that should be applied to the contract. Here the last act occurred when the deceased was in Colorado and the church group he was with, handed over the signed releases.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI, and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release.

The plaintiff then argued the release did not meet the requirements of Colorado or Texas law. The plaintiff argued the contract was ambiguous. Colorado has five factors that must be considered to determine if a contract is ambiguous.

In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.”

The court reviewed the release and found it was not ambiguous. Only one factor the last one, whether the plaintiff has experience in the activity, was possible and the Colorado Supreme Court had weakened that requirement.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver.

So, the court first determined that the release should be reviewed under Colorado law and then determined that under Colorado law, the release was valid and stopped the claims of the plaintiffs.

Finally, I have to comment about one incredibly stupid move on the part of the defendant. As quoted in the facts and by the court.

Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course.

Besides eliminating the defense of assumption of the risk by doing this, you have created a situation where you have increased the chance of a participant getting injured or as in this case died. You cannot assume a risk which you don’t know about.

First, what are you doing taking beginners rappelling over an overhang. This is not a beginner move.

Second, you have a scary section you CANNOT hide it from people, especially if they cannot see it or understand it. You MUST inform your participants of the risk.

Third, the defendant did not tell the deceased how to correct the problem if they found themselves in a compromised position. That is the main goal of any safety talk, to tell your participants how to keep themselves safe and how to rescue or be rescue.

Fourth, you need to hire new guides because it is clear your current guides do not understand the gravity of the situation, let alone the legal liability, of doing this to someone.

So Now What?

However, for one simple paragraph, or actually, one sentence, this lawsuit would have never gotten off the ground. The issue is a jurisdiction and venue clause. If the release would have stated any lawsuit must be in Colorado and Colorado law must apply, this lawsuit would not have had a chance.

Of special note in writing a release in Colorado and a few other states, if you do not outline or identify the possible risks to the participant signing the release, the release may be ambiguous. This issue is facing more scrutiny by the plaintiffs, and you are seeing more courts have to deal with the issue. On top of that, failing to identify the possible risks, eliminates the defense of assumption of the risk, which might be needed.

The other issue that the court waded through that could have done the defendant in was the competing language in the two contracts. First why collect information you cannot use, such as medical information? Only a physician and the participant have the ability to make the decision, as to whether or not they can medically undertake an activity. If you, the activity, business or program, decide a person can’t participate because of a medical issue, you are practicing medicine without a license which is a crime.

That does not mean you cannot collect information that you might need if a participant is injured.

Worse the above in this case, was both documents attempted to include release language and neither agreement had language stated which one was controlling. If you have your participants sign multiple documents you need to make sure that the release is not voided by another contract. You need to make sure one contract is primary, and the other contact has nothing in it that cancels, modifies or revokes the release.

What do you think? Leave a comment.

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Hamric v. Wilderness Expeditions, Inc.,

Hamric v. Wilderness Expeditions, Inc.

ALICIA HAMRIC, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor, Plaintiff – Appellant,

v.

WILDERNESS EXPEDITIONS, INC., Defendant-Appellee.

No. 20-1250

United States Court of Appeals, Tenth Circuit

July 26, 2021

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01442-NYW)

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, Texas (Stephen A. Justino, Boesen Law, Denver, Colorado, on the briefs), for Plaintiff – Appellant.

Malcolm S. Mead (Peter C. Middleton and Jacob R. Woods with him on the brief), Hall & Evans, Denver, Colorado, for Defendant – Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.

McHUGH, CIRCUIT JUDGE

Gerald Hamric, a Texas resident, joined a church group on an outdoor recreation trip to Colorado. The church group employed the services of Wilderness Expeditions, Inc. (“WEI”) to arrange outdoor activities. Before the outdoor adventure commenced, WEI required each participant, including Mr. Hamric, to complete a “Registration Form” and a “Medical Form.” On the first day, WEI led the church group on a rappelling course. In attempting to complete a section of the course that required participants to rappel down an overhang, Mr. Hamric became inverted. Attempts to rescue Mr. Hamric proved unsuccessful, and he died.

Alicia Hamric, Mr. Hamric’s wife, sued WEI for negligence. WEI moved for summary judgment, asserting the Registration Form and the Medical Form contained a release of its liability for negligence. Ms. Hamric resisted WEI’s motion for summary judgment in four ways. First, Ms. Hamric moved for additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Second, Ms. Hamric moved for leave to amend her complaint to seek exemplary damages based on willful and wanton conduct. Third, Ms. Hamric filed a motion for leave to disclose an expert out of time. Fourth, Ms. Hamric argued Texas law controlled the validity of the purported liability release in the Registration Form and the Medical Form, and additionally that the release was not conspicuous as required by Texas law.

In a single order, a magistrate judge addressed each of the pending motions. The magistrate judge first declined to grant leave to amend the complaint due to Ms. Hamric’s failure to (1) sustain her burden under Federal Rule of Civil Procedure 16(b) because the deadline for amendments had passed; and (2) make out a prima facie case of willful and wanton conduct as required by Colorado law to plead a claim seeking exemplary damages. Next, the magistrate judge concluded WEI was entitled to summary judgment, holding the liability release was valid under both Colorado law and Texas law. Finally, the magistrate judge denied as moot Ms. Hamric’s motions for additional discovery and to disclose an expert out of time.

We affirm the magistrate judge’s rulings. As to Ms. Hamric’s motion for leave to amend, a party seeking to amend a pleading after the deadline in a scheduling order for amendment must satisfy the standard set out by Federal Rule of Civil Procedure 16(b). But Ms. Hamric concedes she has never sought to satisfy the Rule 16(b) standard. Turning to the discovery motions, where this case hinges on the validity of the liability release and all facts necessary to this primarily legal issue appear in the record, we reject Ms. Hamric’s contentions that further discovery or leave to belatedly disclose an expert were warranted. Finally, while the magistrate judge’s summary judgment analysis was not free of error, we apply de novo review to that ruling. And, under de novo review, we conclude (1) relying on contract law to resolve the choice-of-law issue, as argued for by the parties, Colorado law, rather than Texas law, controls whether the Registration Form and the Medical Form contain a valid liability release; and (2) the forms contain a valid release for negligence by WEI, barring Ms. Hamric’s action.

I. BACKGROUND

A. The Rappelling Excursion, Mr. Hamric’s Death, and the Liability Release

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”[ 1]

The Registration Form has three sections. The first section requires the participant to provide personally identifiable information and contact information. The second section is entitled “Release of Liability & User Indemnity Agreement for Wilderness Expeditions, Inc.” App. Vol. I at 57, 83.[ 2] The text under this bold and underlined header reads, in full: I hereby acknowledge that I, or my child, have voluntarily agreed to participate in the activities outfitted by Wilderness Expeditions, Inc. I understand that the activities and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and I am cognizant of the risks and dangers inherent with the activities. I (or my child) and (is) fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility whether it is obvious or not. I understand and agree that any bodily injury, death, or loss of personal property and expenses thereof as a result of any, or my child’s, negligence in any scheduled or unscheduled activities associated with Wilderness Expeditions, Inc. are my responsibilities. I understand that accidents or illness can occur in remote places without medical facilities, physicians, or surgeons, and be exposed to temperature extremes or inclement weather. I further agree and understand that any route or activity chosen may not be of minimum risk, but may have been chosen for its interest and challenge. I agree to defend, indemnify, and hold harmless Wilderness Expeditions. Inc., the USDA Forest Service, Colorado Parks and Recreation Department, and any and all state or government agencies whose property the activities may be conducted on, and all of their officers, members, affiliated organizations, agents, or employees for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause. By signing my initials below, I certify this is a release of liability.

Id.[ 3] Immediately after this paragraph, the form reads, “Adult participant or parent/guardian initial here:(Initials).” Id. The third and final section of the form is entitled: “Adult Agreement or Parent’s/Guardian Agreement for Wilderness Expeditions, Inc.” Id. The text of this provision states: I understand the nature of the activities may involve the physical demands of hiking over rough terrain, backpacking personal and crew gear, and voluntarily climbing mountains to 14, 433 feet in elevation. Having the assurance of my, or my child’s, good health through a current physical examination by a medical doctor, I hereby give consent for me, or my child, to participate in the activities outfitted by Wilderness Expeditions, Inc. I have included in this form all necessary medical information about myself, or my child, that should be known by the leadership of the program. I assure my, or my child’s, cooperation and assume responsibility for my, or my child’s, actions. I understand that I am responsible for any medical expenses incurred in the event of needed medical attention for myself, or my child. I further agree that I will be financially responsible to repair or replace all items lost or abused by myself or my child. In the event of an emergency, I authorize my consent to any X-ray examination, medica1, dental, or surgical diagnosis, treatment, and/or hospital care advised and supervised by a physician, surgeon, or dentist licensed to practice. I understand that the designated next of kin will be contacted as soon as possible. By signing my initials below, I certify this is a release of liability.

Id. And, as with the second section, the form then provides a line for the participant or the parent or guardian of the participant to initial.

The Medical Form has four sections. The first section seeks information about the participant. The second section is entitled “Medical History.” Initially, this section asks the participant if he suffers from a list of medical conditions, including allergies, asthma, and heart trouble. If the participant does suffer from any medical conditions, the form requests that the participant explain the affirmative answer. Thereafter, the section includes the following language: Note: The staff will not administer any medications, including aspirin, Tums, Tylenol, etc. If you need any over the counter medications, you must provide them. Be sure to tell your staff members what medications you are taking. List any medications that you will have with you: Note about food: Trail food is by necessity a high carbohydrate, high caloric diet. It is high in wheat, milk products, sugar, com syrup, and artificial coloring/flavoring. If these food products cause a problem to your diet, you will be responsible for providing any appropriate substitutions and advise the staff upon arrival. * Doctor’s signature is required to participate. No other form can be substituted. By signing below a physician is verifying the medical history given above and approving this individual to participate.

Id. at 58, 84. The form then includes a section titled “Physician’s Evaluation.” Id. This section seeks certification of the participant’s medical capability to partake in the outdoor activities and asks the physician for contact information. It reads: The applicant will be taking part in strenuous outdoor activities that may include: backpacking, rappelling, hiking at 8-12, 000 feet elevation, and an all day summit climb up to 14, 433 feet elevation. This will include high altitude, extreme weather, cold water, exposure, fatigue, and remote conditions where medical care cannot be assured. The applicant is approved for participation. Physician Signature: ___ Date: ___ Physician Name: ___ Phone Number: ___ Office Address: ___ City: ___ State: ___ Zip: ___

Id. The final section of the form is entitled “Participant or Parent/Guardian Signature – All sections of these forms must be initialed or signed.” Id. The text of the section reads: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document[.] I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Id.

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

B. Procedural History

In the District of Colorado, Ms. Hamric commenced a negligence action against WEI, sounding in diversity jurisdiction. As a matter of right, Ms. Hamric amended her complaint shortly thereafter. See Fed. R. Civ. P. 15(a)(1)(A) (permitting plaintiff to file amended complaint “as a matter of course” within twenty-one days of serving original complaint). The parties, pursuant to 28 U.S.C. § 636(c), consented to a magistrate judge presiding over the case. WEI answered Ms. Hamric’s First Amended Complaint, in part raising the following affirmative defense: “Decedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation form which Defendant relied upon. The execution of these document [sic] bars or reduces [Ms. Hamric’s] potential recovery.” Id. at 31-32.

The magistrate judge entered a Scheduling Order adopting several deadlines: (1) August 31, 2019, for amendments to the pleadings; (2) January 31, 2020, for Ms. Hamric to designate her expert witnesses; and (3) April 10, 2020, for the close of all discovery. The Scheduling Order also noted WEI’s defense based on the purported liability release, stating “[t]he parties anticipate that mediation . . . may be useful to settle or resolve the case after meaningful discovery and summary judgment briefing on the issue of the validity and enforceability of the liability release.” Id. at 38 (emphasis added). Finally, the Scheduling Order concluded with language reminding the parties that the deadlines adopted by the order “may be altered or amended only upon a showing of good cause.” Id. at 42 (italicized emphasis added).

In November 2019, after the deadline for amendments to the pleadings but before the discovery deadlines, WEI moved for summary judgment based on its affirmative defense that both the Registration Form and Medical Form contained a liability release that barred Ms. Hamric’s negligence claim. In support of its motion, WEI contended Colorado law controlled the interpretation and validity of the liability release. Ms. Hamric opposed summary judgment, arguing that because Mr. Hamric completed the forms in Texas, a Colorado court would apply Texas law and that, under Texas law, the liability release was not adequately conspicuous to be valid.

Ms. Hamric also sought to avoid disposition of WEI’s motion for summary judgment and dismissal of her action by filing three motions of her own. First, Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) for additional time to conduct discovery, contending further discovery would, among other things, reveal details about Mr. Hamric’s completion of the forms and whether Colorado or Texas law should control the interpretation and validity of the purported liability release. Second, in February 2020, Ms. Hamric moved pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a second amended complaint to seek exemplary damages under § 13-21-102 of the Colorado Revised Statutes based on new allegations of WEI’s willful and wanton conduct.[ 4] Ms. Hamric’s motion to amend, however, did not cite Federal Rule Civil Procedure 16(b) or seek leave to amend the August 31, 2019, Scheduling Order deadline for amendments to the pleadings. Third, in March 2020, Ms. Hamric moved for leave to disclose out of time a “‘Rappelling/Recreational Activities Safety’ expert.” App. Vol. II at 37. Ms. Hamric contended the expert’s opinions about the training, knowledge, and rescue efforts of the WEI guides supported her contention in her proposed second amended complaint that WEI acted in a willful and wanton manner.

The magistrate judge disposed of the four pending motions in a single order. Starting with Ms. Hamric’s motion for leave to amend her complaint, the magistrate judge concluded Ms. Hamric (1) “failed to meet her burden under Rule 16(b) of establishing good cause to generally amend the operative pleading” and (2) had not made out a prima facie case of wanton and willful conduct. Id. at 94. The magistrate judge then turned to WEI’s motion for summary judgment. The magistrate judge concluded WEI’s affirmative defense raised an issue sounding in contract law such that principles of contract law controlled the choice-of-law analysis. Applying contract principles, the magistrate judge determined that although Texas law imposed a slightly more rigorous standard for enforcing a liability release, the difference between Texas law and Colorado law was not outcome-determinative and the court could, therefore, apply Colorado law. The magistrate judge read Colorado law as holding that a liability release is valid and enforceable “so long as the intent of the parties was to extinguish liability and this intent was clearly and unambiguously expressed.” Id. at 106 (citing Heil Valley Ranch v. Simkin, 784 P.2d 781, 785 (Colo. 1989)). Applying this standard, the magistrate judge held the liability release used clear and simple terms such that, even though Mr. Hamric was inexperienced at rappelling, the release was valid and foreclosed Ms. Hamric’s negligence claim. Therefore, the magistrate judge granted WEI’s motion for summary judgment. And, having denied Ms. Hamric’s motion for leave to amend and granted WEI’s motion for summary judgment, the magistrate judge denied both of Ms. Hamric’s discovery motions as moot.

Ms. Hamric moved for reconsideration, which the magistrate judge denied. Ms. Hamric timely appealed.

II. DISCUSSION

On appeal, Ms. Hamric contests the denial of her motion for leave to amend and the grant of summary judgment to WEI. Ms. Hamric also tacitly challenges the magistrate judge’s denial of her discovery motions. We commence our analysis with Ms. Hamric’s motion for leave to amend, holding the magistrate judge did not abuse her discretion in denying the motion where the motion was filed after the Scheduling Order’s deadline for amendments to pleadings and Ms. Hamric did not attempt to satisfy Federal Rule of Civil Procedure 16(b)’s standard for amending a deadline in a scheduling order. Next, we discuss Ms. Hamric’s two discovery motions, concluding the magistrate judge did not abuse her discretion by denying the motions because (1) WEI’s motion for summary judgment presented a largely legal issue on which all facts necessary for resolution already appeared in the record; and (2) consideration of the proposed expert’s opinions potentially capable of supporting allegations of willful and wanton conduct was mooted upon Ms. Hamric failing to satisfy Rule 16(b)’s standard for amending her complaint to allege such conduct. Finally, we analyze WEI’s motion for summary judgment. Although the magistrate judge’s decision was not free of error, the errors are not outcome determinative on appeal given our de novo standard of review. Exercising de novo review, we conclude Colorado law governs the validity of the liability release. And considering the entirety of both the Registration Form and the Medical Form, we conclude the liability release satisfies the factors in Colorado law for enforceability. Therefore, we affirm the magistrate judge’s grant of summary judgment.

A. Ms. Hamric’s Motion for Leave to Amend

1. Standard of Review

“We review for abuse of discretion a district court’s denial of a motion to amend a complaint after the scheduling order’s deadline for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015). “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Id. (quotation marks omitted). “A district court also abuses its discretion when it issues an arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Id. (internal quotation marks omitted).

2. Analysis

“A party seeking leave to amend after a scheduling order deadline must satisfy both the [Federal Rule of Civil Procedure] 16(b) and Rule 15(a) standards.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Under the former of those two rules, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To satisfy this standard a movant must show that “the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotation marks omitted). We have observed the “good cause” standard for amending deadlines in a scheduling order is “arguably [a] more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).

In moving for leave to file a second amended complaint, Ms. Hamric discussed Federal Rule of Civil Procedure 15 and how Colorado law did not permit a plaintiff to seek exemplary damages until after commencement of discovery. But Ms. Hamric did not advance an argument for amending the Scheduling Order as required by Rule 16(b). Nor does Ms. Hamric cite Rule 16(b) in her briefs on appeal, much less explain how she satisfied, in her papers before the magistrate judge, the Rule 16(b) standard. In fact, Ms. Hamric conceded at oral argument that, before the magistrate judge, she sought only to amend her complaint and “did not seek to amend the scheduling order.” Oral Argument at 7:42-7:46; see also id. at 7:31-9:10. Ms. Hamric also conceded at oral argument that she had not advanced an argument on appeal regarding satisfying Rule 16(b).

This omission by Ms. Hamric is fatal to her argument. Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend. Husky Ventures, Inc. v. B55 Invs. Ltd., 911 F.3d 1000, 1019-20 (10th Cir. 2018). Even if a party who belatedly moves for leave to amend a pleading satisfies Rule 15(a)’s standard, the party must also obtain leave to amend the scheduling order. But Rule 16(b) imposes a higher standard for amending a deadline in a scheduling order than Rule 15(a) imposes for obtaining leave to amend a complaint. Thus, as Husky Ventures suggests, a party’s ability to satisfy the Rule 15(a) standard does not necessitate the conclusion that the party could also satisfy the Rule 16(b) standard. Id. at 1020; see also Bylin, 568 F.3d at 1231 (observing that Rule 16(b) imposes “an arguably more stringent standard than the standards for amending a pleading under Rule 15”). Accordingly, where Ms. Hamric did not attempt to satisfy the Rule 16(b) standard for amending the Scheduling Order, we affirm the district court’s denial of Ms. Hamric’s motion for leave to amend.

B. Ms. Hamric’s Discovery Motions

After WEI moved for summary judgment, Ms. Hamric filed a pair of discovery-related motions-a motion for additional discovery before disposition of WEI’s motion for summary judgment and a motion to disclose an expert out of time. The magistrate judge denied both motions as moot. After stating the applicable standard of review, we consider each motion, affirming the magistrate judge’s rulings.

1. Standard of Review

We review the denial of a Federal Rule of Civil Procedure 56(d) motion for additional discovery for an abuse of discretion. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). Likewise, we review the denial of a motion to revisit a scheduling order and allow the disclosure of an expert out of time for an abuse of discretion. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253-54 (10th Cir. 2011). “We will find an abuse of discretion when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Ellis, 779 F.3d at 1192 (internal quotation marks omitted). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks omitted).

2. Analysis

a. Motion for additional discovery

Before the April 10, 2020, deadline for discovery, WEI filed its motion for summary judgment based on the liability release. Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) to delay resolution of WEI’s motion for summary judgment, asserting additional discovery would allow her to learn further information about the liability release. The magistrate judge denied the motion as moot, concluding further discovery was not needed to assess the validity of the liability release.

Under Rule 56(d), a party opposing a motion for summary judgment may seek additional time for discovery. To do so, a party must “submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). “[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). “Requests for further discovery should ordinarily be treated liberally.” Cerveny, 855 F.3d at 1110. “But relief under Rule 56(d) is not automatic.” Id. And Rule 56’s provision allowing a non-moving party to seek additional discovery before disposition on a motion for summary judgment “is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990); see also Ellis, 779 F.3d at 1207-08 (affirming denial of Rule 56(d) motion where party “required no further discovery to respond to the . . . summary-judgment motion” and additional discovery sought was speculative).

Through the affidavit supporting her Rule 56(d) motion, Ms. Hamric sought four areas of additional discovery. First, she sought discovery on “the drafting of the purported liability release forms” and the meaning of language on the forms. App. Vol. I at 94. Regardless of whether Colorado or Texas law applies, the four corners of the Registration Form and Medical Form, not WEI’s thought process when drafting the forms, controls the validity of the liability release. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo. 1998) (requiring that intent of parties to extinguish liability be “clearly and unambiguously expressed” (quoting Heil Valley Ranch, 784 P.2d at 785)); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”). Therefore, the drafting process employed by WEI and its understanding of the language of the forms is not relevant to whether the forms included sufficiently specific language to foreclose a claim for negligence.

Second, Ms. Hamric sought to discover information about WEI’s process for distributing the forms and how the church group members, including Mr. Hamric, completed and submitted the forms. Ms. Hamric also requested time to discover matters related to the choice-of-law issue, including the “place of contracting,” “the place of performance,” and “the domicile, residence nationality, place of incorporation and place of business of the parties.” App. Vol. I at 95. Information on these matters, however, was known to Ms. Hamric prior to the magistrate judge’s summary judgment ruling. For instance, the record shows Mr. Hamric received and completed the forms in Texas a few months before the WEI-led excursion and that the church group provided WEI the completed forms upon its arrival at WEI’s location in Colorado. Accordingly, there was no need to delay summary judgment proceedings to discover matters already known to the parties. See Ellis, 779 F.3d at 1207-08.

Third, Ms. Hamric, as part of a challenge to the authenticity of the forms, initially sought to discover information regarding anomalies and alterations on the forms attached to WEI’s motion for summary judgment, as well as evidence of fraud by WEI. Subsequent to Ms. Hamric filing her motion for additional discovery, WEI provided her the original forms signed by Mr. Hamric, and she withdrew her challenge to the authenticity of the forms. Accordingly, by the time the district court ruled on WEI’s motion for summary judgment and Ms. Hamric’s motion for additional discovery, the requests for discovery regarding the authenticity of the forms was moot.

Fourth, Ms. Hamric sought time to discover “evidence of willful and wanton conduct by Defendant WEI and/or by its agents, servants and/or employees.” Id. Discovery on this matter, however, became moot with the magistrate judge’s denial of Ms. Hamric’s motion for leave to amend her complaint to seek exemplary damages and add allegations of willful and wanton conduct, a ruling we affirm. See supra at 12-14, Section II(A).

Having considered each additional discovery request advanced by Ms. Hamric, we conclude the magistrate judge did not abuse her discretion by ruling on WEI’s motion for summary judgment without permitting Ms. Hamric additional time for discovery. Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s Rule 56(d) motion.

b. Motion for leave to disclose expert out of time

Ms. Hamric moved for leave to disclose a “‘Rappelling/Recreational Activities Safety’ expert” out of time. App. Vol. II at 37. Attached to the motion was a Federal Rule of Civil Procedure 26(a)(2) expert disclosure, offering opinions about the alleged negligent and/or willful and wanton conduct of WEI and its employees. The magistrate judge denied this motion as moot. Considering the magistrate judge’s other rulings and our holdings on appeal, we conclude the magistrate judge did not abuse her discretion. Any opinion offered by the expert as to willful and wanton conduct lost relevance with the denial of Ms. Hamric’s motion for leave to amend her complaint to add allegations of willful and wanton conduct and to seek exemplary damages-a ruling we affirmed supra at 12-14, Section II(A). And the expert’s opinion about WEI acting in a negligent manner lost relevance upon the magistrate judge concluding the liability release was valid and barred Ms. Hamric from proceeding on her negligence claim-a ruling we affirm infra at 19-37, Section II(C). Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s motion for leave to disclose an expert out of time.

C. WEI’s Motion for Summary Judgment

After stating our standard of review, we discuss Ms. Hamric’s contentions that the magistrate judge (1) applied the wrong standard when considering WEI’s affirmative defense based on the liability release and (2) resolved issues of disputed fact in favor of WEI. Although we conclude the magistrate judge’s ruling is not free of error, the errors do not bind us because we need not repeat them when conducting our de novo review of the grant of summary judgment. Thus, we proceed to consider the validity of the liability release. In conducting our analysis, we hold that, where the parties contend contract principles provide the framework for our choice-of-law analysis, Colorado law governs the validity of the release.[ 5] And we conclude that, under Colorado law, the liability release is valid and enforceable so as to foreclose Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo. Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson, 477 U.S. at 250. “In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted). For purposes of summary judgment, “[t]he nonmoving party is entitled to all reasonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). Finally, “we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).

2. Alleged Errors by the Magistrate Judge

Ms. Hamric argues the magistrate judge (1) applied the incorrect standard when considering WEI’s affirmative defense and (2) resolved disputed issues of material fact in favor of WEI. We consider each contention in turn.

a. Standard applicable to affirmative defenses

Ms. Hamric contends the magistrate judge announced an incorrect standard of review and impermissibly shifted evidentiary burdens onto her, as the non-moving party. The disputed language in the magistrate judge’s opinion states: When, as here, a defendant moves for summary judgment to test an affirmative defense, it is the defendant’s burden to demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Once the defendant meets its initial burden, the burden shifts to the nonmovant to put forth sufficient evidence to demonstrate the essential elements of her claim(s), see Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), and to “demonstrate with specificity the existence of a disputed fact” as to the defendant’s affirmative defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

App. Vol. II at 100 (emphasis added). Ms. Hamric takes issue with the emphasized phrase.

Nothing on the pages the magistrate judge cited from Anderson and Simms requires a plaintiff responding to a motion for summary judgment based on an affirmative defense to identify evidence supporting each element of her claim. See Anderson, 477 U.S. at 248 (requiring nonmoving party in face of “properly supported motion for summary judgment” to “‘set forth specific facts showing that there is a genuine issue for trial'” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968))); Simms, 165 F.3d at 1326, 1328 (discussing summary judgment standard in context of employment discrimination claim and burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In fact, the standard announced by the magistrate judge would unnecessarily require a plaintiff, in response to a motion for summary judgment based on an affirmative defense, to identify evidence supporting elements of her claim never drawn into question by the defendant. Placing such a burden on a plaintiff is all the more problematic where, as here, the parties contemplated a bifurcated summary judgment process initially focused on the validity of the liability release, and WEI filed its motion for summary judgment before the close of discovery.

We have previously stated that a district court errs by requiring a party opposing summary judgment based on an affirmative defense to “establish at least an inference of the existence of each element essential to the case.” Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quotation marks omitted). We reaffirm that conclusion today. To defeat a motion for summary judgment, a plaintiff, upon the defendant raising and supporting an affirmative defense, need only identify a disputed material fact relative to the affirmative defense. Id.; Hutchinson, 105 F.3d at 564; see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015) (discussing defendant’s burden for obtaining summary judgment based on an affirmative defense). Only if the defendant also challenges an element of the plaintiff’s claim does the plaintiff bear the burden of coming forward with some evidence in support of that element. See Tesone, 942 F.3d at 994 (“The party moving for summary judgment bears the initial burden of showing an absence of any issues of material fact. Where . . . the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden by providing ‘affirmative evidence that negates an essential element of the nonmoving party’s claim’ or by ‘demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.’ If the movant makes this showing, the burden then shifts to the nonmovant to ‘set forth specific facts showing that there is a genuine issue for trial.'” (first quoting Celotex Corp., 477 U.S. at 330, then quoting Anderson, 477 U.S. at 250)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (if summary judgment movant carries its initial burden of showing a lack of evidence in support of an essential element of plaintiff’s claim, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts” supporting the essential element (internal quotation marks omitted)).

The magistrate judge’s erroneous statement regarding Ms. Hamric’s burden, however, does not foreclose our ability to further review the grant of summary judgment. Rather, in accord with the applicable de novo standard of review, we review WEI’s motion for summary judgment under the standard that “should have been applied by the [magistrate judge].”[ 6] Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1266 (10th Cir. 2002) (quotation marks omitted).

b. Resolution of disputed issues of material fact

Ms. Hamric contends the magistrate judge impermissibly resolved two issues of disputed fact in WEI’s favor. We discuss each asserted factual issue in turn, concluding factual disputes existed and the magistrate judge incorrectly resolved one of the disputes against Ms. Hamric. However, even if this factual dispute were material, we may proceed to analyze the validity of the liability release after resolving the dispute in Ms. Hamric’s favor. See Lincoln, 900 F.3d at 1180 (“In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” (internal quotation marks omitted)).

i. Language of Registration Form and Medical Form

In moving for summary judgment, WEI’s brief contained edited versions of the Registration Form and Medical Form that focused the reader’s attention on the language most pertinent to Mr. Hamric’s participation in the outdoor excursion and the release of liability. For instance, the version of the forms in WEI’s brief left out phrases such as “(or my child)” and the accompanying properly-tensed-and-conjugated verb that would apply if the forms were completed by a parent or guardian of the participant, rather than by the participant himself. Compare App. Vol. I at 46, with id. at 57, 83.

Although WEI and Ms. Hamric attached full versions of the forms to their papers on the motion for summary judgment, the magistrate judge’s quotation of the language in the forms mirrored that which appeared in WEI’s brief. Ms. Hamric contends the magistrate judge, in not quoting the full forms, resolved a dispute of fact regarding the language of the forms in WEI’s favor. It is not uncommon for a court to focus on the pertinent language of a contract or liability release when putting forth its analysis. In this case, Ms. Hamric claims the forms should be reviewed on the whole. Although there is no indication the magistrate judge did not review the forms in their entirety, despite her use of incomplete quotations, we attach full versions of the Registration Form and Medical Form completed by Mr. Hamric as an appendix to this opinion. And we consider all the language on the forms when assessing whether the forms contain a valid liability release.

ii. Registration Form and Medical Form as single form

The magistrate judge viewed the Registration Form and the Medical Form as a single, “two-page agreement.” App. Vol. II at 103; see also id. at 101 (“Adult customers are required to execute a two-page agreement with WEI before they are permitted to participate in WEI-sponsored activities. The first page of the agreement is a ‘Registration Form’, followed by a ‘Medical Form’ on page two.”). Ms. Hamric contends the two forms are separate agreements, not a single agreement. While a jury could have concluded that the Registration Form and Medical Form were separate agreements, this dispute of fact is not material given applicable law regarding the construction of agreements that are related and simultaneously executed.

It is clear from the record that a participant needed to complete both forms before partaking in the WEI-lead excursion. Further, while the Medical Form required a signature and a date, the Registration Form required only that a participant place his initials on certain lines, suggesting the forms were part of a single agreement. However, the forms do not contain page numbers to indicate they are part of a single agreement. Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

App., Vol. I at 58, 84 (emphases added). Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.[ 7] Accord Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018) (describing the cannon of expressio unius est exclusio alterius as providing “that the ‘expression of one item of an associated group or series excludes another left unmentioned'” and that “the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” (quoting NLRB v. SW Gen., Inc., 137 S.Ct. 929, 940 (2017))). Thus, a reasonable jury could have found the Registration Form and the Medical Form were separate agreements.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI. Under Colorado law, it is well established that a court may, and often must, construe two related agreements pertaining to the same subject matter as a single agreement. See Bledsoe v. Hill, 747 P.2d 10, 12 (Colo.App. 1987) (“If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Although it is desirable for the documents to refer to each other, there is no requirement that they do so.” (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist., 677 P.2d 320 (Colo. 1984); Harty v. Hoerner, 463 P.2d 313 (Colo. 1969); Westminster v. Skyline Vista Dev. Co., 431 P.2d 26 (Colo. 1967))).[ 8] Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

3. Choice-of-Law Analysis

At the heart of WEI’s motion for summary judgment was whether Colorado or Texas law controls and whether the release is valid under the appropriate law. On appeal, Ms. Hamric contends “contract principles” control the choice-of-law analysis because WEI’s affirmative defense “was a contract issue on a purported agreement to release liability.” Opening Br. at 26-27. Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas. WEI agrees that if contract principles govern the choice-of-law issue, the Restatement (Second) on Conflict of Laws provides the appropriate factors for this court to consider. But WEI contends (1) the liability release is valid under both Colorado and Texas law and (2) the relevant factors in §§ 6 and 188 of the Restatement favor application of Colorado law if this court is inclined to resolve the conflict-of-law issue.

Outdoor recreation and tourism is a growing industry in Colorado, as well as several other states within our circuit. And many outdoor tourism outfitters, like WEI, require participants to complete forms containing liability releases. See Redden v. Clear Creek Skiing Corp., ___ P.3d ___, 2020 WL 7776149, at *2 (Colo.App. Dec. 31, 2020); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 947-48 (Colo.App. 2011); see also Dimick v. Hopkinson, 422 P.3d 512, 515-16 (Wyo. 2018); Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 986 (Utah 2013); Beckwith v. Weber, 277 P.3d 713, 716-17 (Wyo. 2012). With the prevalence and recurrence of questions regarding the validity of liability releases in mind, and viewing the choice-of-law issue as sounding in contract law as urged by the parties, we consider whether the law of the state where the outdoor recreation company is based and the outdoor excursion occurs controls or whether the law of the state of residence of the participant controls.

a. Framework for choice-of-law analysis

“In a diversity action we apply the conflict-of-laws rules of the forum state.” Kipling v. State Farm Mut. Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014). “This is true even when choice of law determinations involve the interpretation of contract provisions.” Shearson Lehman Brothers, Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). Accordingly, this court must look to Colorado choice-of-law rules to determine if Colorado or Texas law applies.

“Colorado follows the Restatement (Second) of Conflict of Laws (1971) . . . for both contract and tort actions,” Kipling, 774 F.3d at 1310 (citing Wood Brothers Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979); First Nat’l Bank v. Rostek, 514 P.2d 314, 319-20 (Colo. 1973)). Absent a forum-state “statutory directive,” the Restatement advises a court to consider seven factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws: Choice-of-Law Principles § 6 (Am. L. Inst. 1971). The commentary to § 6 identifies the first factor as “[p]robably the most important function of choice-of-law rules” because choice-of-law rules are designed “to further harmonious relations between states and to facilitate commercial intercourse between them.” Id. § 6 cmt. d. Meanwhile, the second factor takes into account any special interests, beyond serving as the forum for the action, that the forum state has in the litigation. Id. § 6 cmt. e. As to the fourth factor-“the protection of justified expectations, “- the comments to § 6 note: This is an important value in all fields of the law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state.

Id. § 6 cmt. g.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws: Law Governing in Absence of Effective Choice by the Parties § 188.

b. Colorado law controls

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado. Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Id. § 188 cmt. e. Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release. See Scoular Co. v. Denney, 151 P.3d 615, 619 (Colo.App. 2006) (discussing means of accepting an offer and stating “general rule that communication is required of the acceptance of the offer for a bilateral contract”). The second contact consideration is not applicable because the terms of the Medical Form precluded alteration, and there is no suggestion in the record Mr. Hamric attempted to negotiate the terms of the liability release before signing the forms. The third and fourth factors heavily favor application of Colorado law because WEI provides outdoor excursion services in Colorado, not Texas, and Mr. Hamric knew such when he signed the forms. Finally, the fifth factor is neutral because Mr. Hamric was a resident of Texas and WEI has its place of business in Colorado. With three factors favoring Colorado law, one factor inapplicable, and one factor neutral, the overall weight of the § 188 factors favors application of Colorado law.

Concluding that both § 6 and § 188 of the Restatement strongly support application of Colorado law, we hold that a Colorado court would choose to apply Colorado law, not Texas law, when determining whether the Registration Form and Medical Form contain a valid liability release. We, therefore, proceed to that analysis.

4. The Liability Release Is Valid under Colorado Law

Under Colorado law, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, 784 P.2d at 783.But, such “[e]xculpatory agreements are not necessarily void,” as courts recognize that “[t]hey stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” Id. at 784.In assessing the validity of a release, “a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see also Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (a release agreement “must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into”).

Ms. Hamric challenges only WEI’s ability to show “whether the intention of the parties is expressed in clear and unambiguous language.”[ 9] “To determine whether the intent of the parties is clearly and unambiguously expressed, [the Colorado Supreme Court has] examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d at 467. In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.” Salazar v. On the Trail Rentals, Inc., Civil Action No. 11-cv-00320-CMA-KMT, 2012 WL 934240, at *4 (D. Colo. Mar. 20, 2012) (deriving factors from Heil Valley Ranch, 784 P.2d at 785; Chadwick, 100 P.3d at 467); see also Eburn v. Capitol Peak Outfitters, Inc., 882 F.Supp.2d 1248, 1253 (D. Colo. 2012) (citing factors set forth in Salazar). Each and every factor, however, need not be satisfied for a court to uphold the validity of a liability release, as the Colorado Supreme Court has upheld the validity of a release where the signor was a novice at the outdoor activity in question. See B & B Livery, Inc., 960 P.2d at 138 (upholding liability release without finding every factor favored validity); id. at 139-40 (Hobbs, J., dissenting) (discussing signor’s inexperience riding horses).

The first four factors taken from Heil Valley Ranch and Chadwick support the validity of the liability release in the Registration Form and Medical Form. The forms span a mere two pages, with language pertinent to the liability release in only four sections of the forms. And those four sections are generally free of legal jargon. For instance, in detailing the scope of the release, the Registration Form required the participant/signor to “hold harmless Wilderness Expeditions, Inc. . . . for any injury or death caused by or resulting from my or my child’s participation in the activities.”[ 10] App. Vol. I at 57, 83. And this language comes after the form describes several of the risks associated with the activities, including “that accidents or illness can occur in remote places without medical facilities” and that “any route or activity chosen [by WEI] may not be of minimum risk, but may have been chosen for its interest and challenge.” Id. The Registration Form also twice places bolded emphasis on the fact that a participant was releasing WEI from liability: “By signing my initials below, I certify this is a release of liability.”Id. Finally, although not explicitly a factor identified by Colorado courts, we observe WEI provided the church group with the forms, and Mr. Hamric completed the forms, months before the booked excursion. Thus, if Mr. Hamric personally had difficulty understanding any of the language on the forms, he had ample time to contact WEI for an explanation or consult legal counsel.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver. See B & B Livery, Inc., 960 P.2d at 138-39. And, where the liability release between Mr. Hamric and WEI is otherwise clear, specific, and uncomplicated, Mr. Hamric’s lack of experience rappelling is insufficient to defeat the release as a whole.

Accordingly, applying Colorado law, we hold the liability release is valid and its enforcement bars Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment in favor of WEI.

III. CONCLUSION

We affirm the denial of Ms. Hamric’s motion for leave to amend her complaint because the magistrate judge did not abuse her discretion where Ms. Hamric did not attempt to satisfy the Federal Rule of Civil Procedure 16(b) standard for amending the Scheduling Order. We also affirm the denial of Ms. Hamric’s discovery motions, holding the magistrate judge did not abuse her discretion where the items Ms. Hamric sought to discover were either already in the record, were not necessary to determine the validity of the liability release, or went to Ms. Hamric’s effort to obtain exemplary damages, which she could not pursue given the denial of her motion for leave to amend her complaint. Finally, applying de novo review to the choice-of-law issue and the issue regarding the validity of the liability release, we conclude Colorado law applies and the release is valid and enforceable under that law. Therefore, we affirm the magistrate judge’s grant of summary judgment to WEI.

———

Notes:

[ 1]Here, we summarize the Registration Form and the Medical Form. Copies of the full forms, taken from the Appendix submitted by Ms. Hamric, are attached to this opinion. We rely on the full forms, and all of the language thereon, when conducting our analysis. Further, as discussed infra at 25-27, Section II(C)(2)(b)(ii), while the Registration Form and Medical Form could be viewed as separate forms, Colorado law requires us to consider both forms together when conducting our analysis.

[ 2]Throughout our opinion, we cite simultaneously to the Registration Form or Medical Form attached to WEI’s motion for summary judgment, App. Vol. I at 57- 58, and the Registration Form or Medical Form attached to Ms. Hamric’s response to WEI’s motion for summary judgment, id. at 83-84. Although the language of the two sets of forms are identical, the clarity of the text varies somewhat, seemingly based on the proficiency of the respective copy machines used by the parties.

[ 3]In quoting the forms, we seek to replicate the font size, spacing, and bolding of the text of the Registration Form and Medical Form completed by Mr. Hamric.

[ 4] Under Colorado law: A claim for exemplary damages in an action governed by [§ 13-21-102 of the Colorado Revised Statutes] may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue.

Colo. Rev. Stat. § 13-21-102(1.5)(a).

[ 5]Although Ms. Hamric’s action sounds in tort law, on appeal, the parties do not contend that tort principles provide the framework for the choice-of-law analysis regarding the liability release. Thus, we reach no conclusion as to whether Colorado law or Texas law would govern if tort principles played a role in the choice-of-law analysis.

[ 6]While the magistrate judge incorrectly stated the standard governing WEI’s motion for summary judgment, it is not apparent the magistrate judge’s analysis and conclusion that WEI was entitled to summary judgment hinged on Ms. Hamric’s failure to identify evidence supporting each element of her negligence claim. Rather, the magistrate judge correctly granted WEI summary judgment based on the liability release and WEI’s affirmative defense.

[ 7]WEI has advanced inconsistent positions on whether the Registration Form and Medical Form comprised a single agreement. Although on appeal WEI argues the forms constitute a single agreement releasing liability, WEI’s Answer to Ms. Hamric’s Complaint treats the two forms as separate agreements, stating that “[d]ecedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation.” App. Vol. I at 32 (emphasis added).

[ 8]Although we conclude that Colorado law, not Texas law, controls the validity of the liability release, infra at 28-33, Section II(C)(3), Texas law likewise permits a court to read separate but related documents together when determining the intent of the parties, see Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (“The City’s argument ignores well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other, and that a court may determine, as a matter of law, that multiple documents comprise a written contract. In appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument.” (footnotes omitted)).

[ 9]Ms. Hamric also argues that the question of whether Mr. Hamric and WEI entered into a liability release was a question of fact for a jury. But Ms. Hamric withdrew her fact-based challenge to the authenticity of the forms. Further, under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). And, where a liability release has force only if it is “clear and unambiguous,” id., the question of the existence of a liability release and its validity are one in the same because if the language relied on by a defendant does not form a valid release, then no liability release exists.

[ 10] The omitted language marked by the ellipses also required a signor/participant to hold federal and state agencies harmless for injuries or death that might occur as a result of WEI-led activities on federal or state land. Like the rest of the release, this language is plain and clear such that any reasonably educated individual would understand the nature of the release as to these third parties.


Washington Appellate court reviews release law in 2021 and the requirements on when a release is ambiguous and/or conspicuous.

Like most other states, if you signed the release, you read and agree to the release. However, that is about the only similarity to release law in other states as pointed out in this decision.

McCoy v. PFWA Lacey, LLC, dba Planet Fitness,

State: Washington, Court of Appeals of Washington, Division 2

Plaintiff: Carol J. McCoy

Defendant: PFWA Lacey, LLC, dba Planet Fitness

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2021

Summary

The release used by the health club stopped the lawsuit filed by the plaintiff for her injuries. However, this decision points out two very different requirements Washington’s law requires for a release to be valid. No release will work in all 43 states that allow the use of a release.

Facts

On February 1, 2016, McCoy entered into a membership agreement at Planet Fitness in Lacey. The first page of the two-page membership agreement begins with a section covering personal information, membership rate, and financial terms of the membership. The final sentence of this section states, “Cancellation & Billing Policies: I have read and understand the cancellation rights and billing policies on the front and back of this agreement,” followed by McCoy’s signature/initials. Clerk’s Papers (CP) at 25. Below McCoy’s signature/initials is a large box marked “PAYMENT AUTHORIZATION” with McCoy’s bank account information, and her signature after the paragraph authorizing a monthly membership fee payment.

In July 2016, McCoy fell from a stair stepper machine at Planet Fitness. She alleged that the emergency stop button failed to stop the machine, causing her injury. In January 2019, McCoy filed an amended complaint, naming Planet Fitness and the manufacturer of the machine, the Brunswick Corporation, [ 2] as defendants. She alleged claims of negligence and failure to provide a safe product.

Planet Fitness filed a motion for summary judgment, arguing in part that McCoy had signed an enforceable liability waiver. In support of its motion, it provided a copy of the membership agreement as well as excerpts from a transcript of McCoy’s deposition testimony. In her deposition, when shown the membership agreement, McCoy stated that she did not remember seeing the membership agreement before and that she did not remember signing it.

McCoy responded to the motion, arguing that the waiver provision in the membership agreement was inconspicuous and ambiguous, and because McCoy was not given an opportunity to read or review the agreement, it was unwittingly signed. In a supporting declaration, McCoy recalled the day she signed the membership agreement: 3.I was there for a short time, and I spoke to a person who appeared to be the manager, or at least was working behind the desk, who presented me with some documents to sign. He identified these documents as mere formalities and that I had to sign them in order to join the club. He showed me where to sign on a couple documents and I signed them, but I was not given an opportunity to read all the language, and when I mentioned that, he told me he would send me copies of these documents in the mail to my home address. He never did. 4.What little I could see of the documents was in very fine, small print which I could not read, at least on one of the documents, and the first time I saw the documents was at my deposition. I did not have time to read them at my deposition and I would have had difficulty anyway because the print was so small. . . . . As I said, the only direction I got from the person who was working behind the counter was to “sign here” and I did. He immediately took the documents back and told me that he would mail them to me, but I never received copies in the mail so I never really had an opportunity to review them before the incident occurred, or any time afterwards.

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

Washington’s law since 1988 has allowed the use of releases to allow parties to stop litigation.

The Washington Supreme Court has recognized the right of parties “‘expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.'”

Washington has three ways to void releases, one that is found in most states and two slightly different ways. The first, a release fails if it violates public policy. This means the release is void based on who the release is attempting to protect or the services being offered that are to be covered by the release. However, in Washington, the state has adopted six factors to define public policy.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wash.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 446 (1963)).

The second and third ways are very different from other states. If the negligent act falls below the standard of protection for others, it is void. This phrase is not defined in Washington’s law that I can find, even though it is quoted in several cases. I am guessing it is similar to a gross negligence argument. The act or omission of the defendant was so great as to far exceed negligence. However, I’m not sure.

Generally, a liability waiver or exculpatory clause in a contract is “enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.” The first two exceptions are not at issue here. A liability waiver provision is not enforceable if the releasing language is “‘so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.’

The inconspicuous argument was the main argument made by the defendant in this case and discussed by the court. Washington has six factors to determine if the language in a contract is inconspicuous.

Courts look to several factors in deciding whether a liability waiver provision is conspicuous, including: (1) whether the waiver provision is set apart or hidden within other provisions, (2) whether the heading or caption of the provision is clear, (3) whether the waiver provision is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver provision.

The is far more requirements than most states, in fact; most states only require the waiver or release provisions be set apart or not hidden within the contract. Washington also requires that there be a heading or caption providing notice of the importance of the release or waiver section. That language of the exculpatory provisions must be in capital letters or bold type. The signature on the document must be below the exculpatory provisions. That means if your contract has a signature on the front of the document but references release language on the back, the release will be void.

The language above the signature line must indicate the person is giving up their legal rights or the signature line must be specifically below the release provisions, and the signature must clearly relate to the release provisions.

This six-part analysis of conspicuous is not done individually but looking at the agreement as a whole. Yet the analysis the court made was of each point of the test and reviewed individually, not as a whole.

We do not look to whether the plaintiff unwittingly signed the form from her subjective viewpoint, but whether, “objectively, the waiver provision was so inconspicuous that it is unenforceable.” Essentially, if the waiver provision is hidden, i.e. inconspicuous, it is unenforceable. Nevertheless, even if the waiver provision is conspicuous, and a person signs without reading it, the provision is enforceable unless the signor was not given an opportunity to read it. (“[A] person who signs an agreement without reading it is bound by its terms as long as there was ‘ample opportunity to examine the contract in as great a detail as he cared, and he failed to do so for his own personal reasons.'”)

The following two pages of analysis in the decision by the court looked at the release in detail to determine if the six factors had been met. The court found the waiver language in the contract was conspicuous and thus valid.

The next argument made by the plaintiff was the plaintiff did not have time to read the release.

McCoy admits that she did not read the agreement. Even though she did not read the agreement, she would be bound by its terms only if there was opportunity to examine the contract in as great a detail as she cared, and she failed to do so for her own personal reasons. (“Where a party has signed a contract without reading it, that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract.”).

Basically, if you signed the agreement, you have read and understood the agreement.

So Now What?

No release or waiver can be written to satisfy the laws of all 50 states or the 43 states that allow the use of a release or waiver. Even though Washington’s law is similar to the law in most states, it is very different in several aspects, enough so that if you operate in or are based in Washington your release must be written to meet Washington’s law.

No other state has the requirements for conspicuous that are required for a waiver or release to be valid like Washington’s law. It is specific and as stated by the court, if all six parts of the requirements are not met the release is void.

What do you think? Leave a comment.

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