Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178
Posted: August 26, 2013 Filed under: California, Cycling, Legal Case, Racing, Release (pre-injury contract not to sue) | Tags: bicycle, Bicycle Racing, California, California Constitution, California Courts of Appeal, Cycle Racing, Cycling, Hastings, Public Interest, Public Policy, Release, South Bay Wheelmen, United States Cycling Federation, United States Cycling Federation City of Hermosa Beach Leave a commentOkura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178
Kevin Okura, Plaintiff and Appellant, v. United States Cycling Federation et al., Defendants and Respondents
No. B021058
Court of Appeal of California, Second Appellate District, Division Five
186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178
November 12, 1986
PRIOR HISTORY: [***1] Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *
* Pursuant to California Constitution, article VI, section 21.
DISPOSITION: For the foregoing reasons, the judgment is affirmed.
CALIFORNIA OFFICIAL REPORTS SUMMARY In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *)
In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *)
* Pursuant to California Constitution, article VI, section 21.
The Court of Appeal affirmed. The court held that the release was not one involving a transaction affecting the public interest, and was therefore not invalid under Civ. Code, § 1668, making contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object against the policy of the law. Further, there were no triable issues of fact regarding whether the release form was clear and legible or whether the release form released defendants from the type of risk which caused plaintiff’s injuries. (Opinion by Hastings (Gary), J., + with Feinerman, P. J., and Ashby, J., concurring.)
+ Assigned by the Chairperson of the Judicial Council.
HEADNOTES
CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports, 3d Series
(1) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Releases. –Preincident releases that do not involve transactions affecting “the public interest” are not invalid under Civ. Code, § 1668, providing that contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object are against the policy of the law. The areas to consider to determine whether or not the public interest is affected are whether it concerns a business suitable for public regulation; whether the party seeking exculpation is performing a service of great importance to the public; whether the party holds himself out as willing to perform the service for any member of the public who seeks it, or at least for any member coming within certain established standards; whether, as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; whether, in exercising his 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 whether, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
(2) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Release–Participation in Organized Bicycle Race. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a release which plaintiff had signed prior to entering the race. The release was not invalid under Civ. Code, § 1668, providing that all contracts which have for their object the exemption of anyone for responsibility for his own wilful injury to the person or property of another are against the policy of the law, since the preincident release did not affect the public interest.
(3) Compromise, Settlement and Release § 8–Requisites and Validity–Clarity and Legibility of Release Form. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly granted summary judgment for defendants based on an otherwise valid preincident release which plaintiff had signed prior to entering the race, since no triable issues of fact existed regarding whether the release form was clear and legible. The release was not buried in a lengthy document or hidden among other verbiage. The type was clear and legible, and in light of the fact that the release had no other language to compete with, its size, three and one-half inches by eight inches, was appropriate.
(4) Compromise, Settlement and Release § 9–Construction, Operation and Effect–Release From Type of Risk Causing Injuries. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a preincident release which plaintiff had signed prior to entering the race, since the otherwise valid release form released defendants from the type of risk which caused plaintiff’s injuries. The language was clear and unambiguous and the entities released from liability that could have arisen out of negligence or carelessness on the part of the persons or entities mentioned in the release obviously included defendants, who were the promoters and sponsors of the event, and the city, which was an involved municipality.
COUNSEL: Edwin J. Wilson, Jr., and Jo Ann Iwasaki Parker for Plaintiff and Appellant.
Hagenbaugh & Murphy, Robert F. Donohue, Spray, Gould & Bowers, David T. Acalin, Cynthia Goodman and Robert Dean for Defendants and Respondents.
JUDGES: Opinion by Hastings (Gary), J., + with Feinerman, P. J., and Ashby, J., concurring.
+ Assigned by the Chairperson of the Judicial Council.
OPINION BY: HASTINGS
OPINION
[*1464] [**429] On August 4, 1984, appellant was injured while participating in a bicycle race known as the Hermosa Beach Grand Prix. The race was organized and staffed by members and volunteers of the South Bay Wheelmen, Inc., a nonprofit affiliate of the United States Cycling Federation. The United States Cycling Federation is a nonprofit organization of amateur competitive cyclists which sanctions bicycle races and provides clinics and training for members to prepare them for racing events. The race was run on closed portions of the public streets of Hermosa [***2] Beach. The city had issued a permit for the event.
Appellant has brought suit against the South Bay Wheelmen, United States Cycling Federation and the City of Hermosa Beach alleging negligence in the preparation and maintenance of the course. Plaintiff was racing in the second to last race of the day and apparently fell when his bicycle hit [*1465] loose debris as he was crossing railroad tracks on the course. He slid into a loose guardrail and was injured upon impact.
Summary judgment was granted to respondents herein based upon a release admittedly signed by appellant prior to entering the race. The release is contained on the entry form which is titled “Southern California Cycling Federation Standard Athelete’s Entry Blank and Release Form.” The language of the release contained immediately below the title is as follows: “In consideration of the acceptance of my application for entry in the above event, I hereby waive, release and discharge any and all claims for damages for death, personal injury or property damage which I may have, or which may hereafter accrue to me, as a result of [**430] my participation in said event. This release is intended [***3] to discharge in advance the promoters, sponsors, the U.S.C.F., the S.C.C.F., the promoting clubs, the officials, and any involved municipalities or other public entities (and their respective agents and employees), from and against any and all liability arising out of or connected in any way with my participation in said event, even though that liability may arise out of negligence or carelessness on the part of the persons or entities mentioned above.
“I further understand that serious accidents occasionally occur during bicycle racing: and that participants in bicycle racing occasionally sustain mortal or serious personal injuries, and/or property damage, as a consequence thereof. Knowing the risks of bicycle racing, nevertheless, I hereby agree to assume those risks and to release and hold harmless all of the persons or entities mentioned above who (through negligence or carelessness) might otherwise be liable to me (or my heirs or assigns) for damages.
“It is further understood and agreed that this waiver, release and assumption of risk is to be binding on my heirs and assigns.
“I agree to accept and abide by the rules and regulations of the United States Cycling [***4] Federation.” (Italics added.) The only remaining terms on the form are for information regarding the entrant such as: signature, name, address, phone number, date, age and class entered. The whole form is only eight inches wide and three and one-half inches high. The language of the release portion quoted above takes up approximately 40 percent of the form.
The facts presented to the trial court regarding the release were uncontradicted. Appellant admitted signing the release but complained he had no choice and that he had no chance to inspect the course himself because the organizers prevented the participants from going onto the course except during the race. He argues that the release form is void as against public [*1466] policy because it is a contract of adhesion and that the form itself is not sufficient to put a participant on notice that he is actually signing a release.
(1) (2) Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693] sets forth the basic law regarding the validity of preincident releases. First of all, the case recognizes that [HN1] not all releases of liability are invalid under Civil Code section [***5] 1668. Those releases that do not involve transactions affecting “the public interest” may stand. The case sets forth six areas to consider to determine whether or not the public interest is affected: “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus [HN2] the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of [***6] bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of [**431] the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Italics added, fns. omitted, 60 Cal.2d at pp. 98-101.) Bearing these in mind, we will analyze this case.
1. Public Regulation
The transaction in this case was entry into a public bicycle race organized by private nonprofit organizations. While bicycles generally are regulated to the extent they are subject to motor vehicle laws, the organized racing of bicycles is not the subject of public regulation. Neither the South Bay Wheelmen nor the United States Cycling Federation are subject to public regulation.
2. Is This a Service of Great Importance to the Public
The service provided here was the organization and running [***7] of competitive bicycle races for members of the organizers and the public. The race organizers [*1467] obtained the necessary permits; laid out the course; manned the course; obtained sponsors; and advertised the event. This is very similar to the organization and sponsorship of the numerous 10-kilometer and marathon running events that have blossomed since the mid to late 1970’s. However, herein, the races were divided into different classes. Appellant was riding in an “open” public event. Without such organization and sponsorship, those that desire to enter bicycle racing would undoubtedly have no chance to do so under organized settings. Therefore, there is no doubt but that respondents offer a public service. However, does it measure up to the public importance necessary to void the release.
In Tunkl v. Regents of University of California, supra, 60 Cal.2d 92, the question was whether or not a public hospital provided a service of great public importance. The question was answered in the affirmative. The question was also answered in the affirmative regarding escrow companies in Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153 [70 Cal.Rptr. [***8] 287]. In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410], the Supreme Court held that hospitals, and the relationship between hospitals and physicians, were sufficiently important to prevent an exculpatory clause from applying to a doctor suing a hospital based upon hospital bylaws. In Vilner v. Crocker National Bank (1979) 89 Cal.App.3d 732 [152 Cal.Rptr. 850], the court found that the practice of night deposits was of great public importance regarding the banking industry and its customers so that an exculpatory clause in a night deposit agreement was unenforceable. Also, common carriers provide a sufficiently important public service that exculpatory agreements are void. ( Rest.2d Contracts, § 195, com. a, p. 66.)
Measured against the public interest in hospitals and hospitalization, escrow transactions, banking transactions and common carriers, this transaction is not one of great public importance. [HN3] There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation. The number of participants is relatively minute compared [***9] to the public use of hospitals, banks, escrow companies and common carriers. Also, the risks involved in running such an event certainly do not have the potential substantial impact on the public as the risks involved in banking, hospitals, escrow companies and common carriers. The service certainly cannot be termed one that “is often a matter of practical necessity for some members of the public.” ( Tunkl v. Regents of University of California, supra, 60 Cal.2d at p. 99.)
3. That the Service Is Open to Any Member of the Public.
It appears that anyone with a bicycle and the entrance fee who desires to enter the event can do so under standards established by the organizers.
[*1468] 4. The Economic Setting and “The Essential Nature of the Service.”
Item 4 seeks to measure the relative bargaining strengths of the parties. However, [**432] its prefaced by the words “the essential nature of the service.” (60 Cal.2d at pp. 99-100.) This ties in with item 2 above. The service provided herein can hardly be termed essential. It is a leisure time activity put on for people who desire to enter such an event. People are not compelled to enter the event [***10] but are merely invited to take part. If they desire to take part, they are required to sign the entry and release form. The relative bargaining strengths of the parties does not come into play absent a compelling public interest in the transaction.
5. Superior Bargaining Power and Standardized Adhesion Contract.
As set forth in item 4, this is not a compelled, essential service. The transaction raises a voluntary relationship between the parties. The promoters and organizers volunteer to hold a race if the entrants volunteer to take part for a nominal fee and signature on the entry and release form. These are not the conditions from which contracts of adhesion arise. Therefore, this item is not applicable.
6. The Provision of Control.
Compared to the patient who has placed himself in the exclusive control of the hospital in Tunkl, or the passenger who sits on a public conveyance, no such release of control exists here. Appellant retained complete control of himself and his bicycle and at any time could have dropped out of the race. Respondents had no control over how appellant rode his bicycle or approached the area in question except as to the general [***11] layout of the course.
Except for item 3, appellant’s situation does not fall within the guidelines set out in Tunkl. (60 Cal.2d at p. 92.) This situation does not present a transaction affecting the public interest. Therefore, there is no proscription for the release contained in the entry and release form herein. The trial court correctly relied upon the case of McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 [216 Cal.Rptr. 465].
(3) (4) Finally, no triable issues of fact exist regarding whether the release form is clear and legible or whether the release form released respondents from the type of risk which caused appellant’s injuries. As previously indicated, the entire form is only three and one-half inches by eight inches and the only printing on the form other than the incidental information relating to the competitor is the release language. It is not buried in a lengthy document or hidden among other verbiage. The type is clear [*1469] and legible and in light of the fact it has no other language to compete with, its size is appropriate. The language is clear and unambiguous and the first paragraph concludes with “even though that liability [***12] may arise out of negligence or carelessness on the part of the persons or entities mentioned above.” The entities mentioned obviously include the South Bay Wheelmen who were the “promoters and sponsors” of the event, the United States Cycling Federation and the City of Hermosa Beach, “any involved municipalities.”
For the foregoing reasons, the judgment is affirmed.
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Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Posted: August 26, 2013 Filed under: Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Bacchiocchi v Ranch Parachute Club, Bouldering, Cause of action, Climbing Wall, Cornell University, education, Ithaca, New York, Release, Rock climbing, Supreme Court 4 CommentsLemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Decided and Entered: December 11, 2003
93723
[*1]Nadine Lemoine, Appellant, v Cornell University, Respondent.
Memorandum and Order
Calendar Date: October 15, 2003
Before: Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ.
Lo Pinto, Schlather, Solomon & Salk, Ithaca
(Raymond M. Schlather of counsel), for appellant.
Nelson E. Roth, Cornell University, Ithaca, for
respondent.
Cardona, P.J.
Appeal from an order of the Supreme Court (Mulvey, J.), entered January 2, 2003 in Tompkins County, which granted defendant’s motion to dismiss the complaint.
Plaintiff alleges that she sustained injuries on January 30, 2000, when she fell from the Lindseth Climbing Wall at defendant’s university during the first session of a seven-week basic rock climbing course offered by defendant’s outdoor education program. She had taken the same course eight years earlier, but had not taken any further instruction in the intervening years. Plaintiff registered, paid the tuition for the class, watched the orientation video describing safety procedures and signed a release holding defendant harmless from liability for, inter alia, any injuries caused by use of the climbing wall, including those caused by defendant’s own negligence. Plaintiff, as a climbing student, also signed a “Contract to Follow Lindseth Climbing Wall Safety Policies,” which included a promise that she would not climb above the yellow “bouldering” line without the required safety equipment. Prior to the accident, plaintiff, who was not wearing safety equipment, alleged that she was climbing with most of her body above the bouldering line. At the time, plaintiff and approximately 10 other students were under the supervision of two instructors. As she descended, instructor Michael Gilbert allegedly told her where to place her hands and feet. Plaintiff asserts that she lost her footing and fell to the floor [*2]below, which she described as “virtually unpadded.”[FN1] Thereafter, plaintiff commenced this action asserting negligence and gross negligence. Defendant moved to dismiss based upon the release and the safety contract, as well as a claim that plaintiff failed to set forth a cause of action [FN2]. Supreme Court granted defendant’s motion, prompting this appeal.
Plaintiff contends that the release and safety contract are void as against public policy by operation of statute, and, as a result, Supreme Court erred in granting defendant’s motion to dismiss. General Obligation Law § 5-326 states in pertinent part:
“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”
The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F Supp 2d 92, 99 [1998]; McDuffie v Watkins Glen Intl., 833 F Supp 197, 202 [1993]). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370 [1994]), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145 [1985]), have been found to be outside the scope of the statute.
In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility (see Fusco v Now & Zen, 294 AD2d 466, 467 [2002]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175-176 [2000]; Baschuk v Diver’s Way Scuba, supra at 370). Difficulties arise in this area of law in situations where a person is injured at a mixed-use facility, namely, one which provides both recreation and instruction. In some cases, courts have found that General Obligations Law § 5-326 voids the particular release where the facility provides instruction only as an “ancillary” [*3]function, even though it is a situation where the injury occurs while receiving some instruction (see e.g. Bacchiocchi v Ranch Parachute Club, supra at 175-176; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1002-1003 [1978]). In other mixed-use cases, courts focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, supra at 99).
Here, plaintiff points out that her enrollment in the class entitled her to a discounted fee rate in the event that she sought use of the climbing wall on nonclass days and, additionally, defendant allowed its students, alumni and graduates of the rock climbing course to use the wall as long as they paid the regular fee and watched the safety video. Consequently, plaintiff, citing Bacchiocchi v Ranch Parachute Club (supra), argues that since this facility is both recreational and instructional, General Obligations Law § 5-326 must apply. While it may be true that defendant’s facility is a mixed use one, given that defendant is unquestionably an educational institution, along with the fact that the brochure and course materials in the record indicate that the purpose of the climbing wall facility was “for education and training in the sport of rockclimbing,” it is apparent that any recreational use of the wall by nonstudents would be ancillary to its primary educational purpose (cf. Bacchiocchi v Ranch Parachute Club, supra). Furthermore, even focusing primarily on plaintiff’s purpose at the facility, it is undisputed herein that she enrolled in the course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods (cf. Scrivener v Sky’s the Limit, supra at 281). Therefore, under all the circumstances, we find that Supreme Court properly found the statute to be inapplicable.
Having found that the release and safety contract were not voided by the statute, we now decide whether they are dispositive in this case (cf. Gross v Sweet, 49 NY2d 102, 107 [1979]). For example, the release unambiguously acknowledges, inter alia, the inherent risks of rock climbing and the use of the climbing wall, including the risk of injury from falling off the wall onto the floor below, which is what plaintiff describes as happening in this case. The release further holds defendant harmless from liability from any negligence, including that related to plaintiff’s supervised or unsupervised use of the wall. Given plaintiff’s signature and initials on these documents, we conclude that dismissal was proper.
Turning to plaintiff’s contention that, even if the statute is applicable, defendant’s motion to dismiss should not have been granted because the release and safety contract, standing alone, would not defeat a claim adequately alleging gross negligence (see Amica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835, 836 [1995]). Significantly, gross negligence is reckless conduct that borders on intentional wrongdoing and is “different in kind and degree” from ordinary negligence (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]; see e.g. Green v Holmes Protection of N.Y., 216 AD2d 178, 178-179 [1995]). Where a complaint does not allege facts sufficient to constitute gross negligence, dismissal is appropriate (see Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, supra at 431). Even assuming that plaintiff’s specific allegations are true, we agree with Supreme Court that they constitute only ordinary negligence and cannot survive the motion to dismiss.
The remaining arguments raised by plaintiff have been examined and found to be either unpersuasive or rendered academic by our decision herein.
Crew III, Carpinello, Rose and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnotes
Footnote 1: The incident report form, which plaintiff disputes, states that she “decided to jump down.” Defendant’s employees also assert that the floor was padded and plaintiff was four feet from the ground at the time that she left the wall.
Footnote 2: We note that although defendant’s motion states that it is pursuant CPLR 3211 (a) (1) and (7), it appears from the language therein that it is also premised upon CPLR 3211 (a) (5).
WordPress Tags: Lemoine,Cornell,LEXIS,December,Nadine,Appellant,Respondent,Memorandum,Order,Calendar,Date,October,Cardona,Crew,Carpinello,Rose,Lahtinen,Pinto,Schlather,Solomon,Salk,Ithaca,Raymond,Nelson,Roth,Appeal,Supreme,Court,Mulvey,January,Tompkins,defendant,complaint,Plaintiff,injuries,Lindseth,Wall,session,education,instruction,tuition,procedures,negligence,student,Contract,Policies,equipment,Prior,accident,students,supervision,instructors,instructor,Michael,Gilbert,feet,Thereafter,action,policy,statute,General,Obligation,covenant,agreement,connection,collateral,membership,ticket,admission,owner,operator,gymnasium,amusement,recreation,establishment,user,facilities,compensation,person,agents,servants,employees,parks,clauses,tickets,Supp,McDuffie,Watkins,Glen,Intl,Millan,Brown,Chieco,Baschuk,Diver,Scuba,Meier,Bars,scope,certificate,incorporation,statement,purpose,money,Fusco,Bacchiocchi,Ranch,Parachute,Club,Difficulties,area,situations,Obligations,situation,injury,Wurzer,Seneca,Sport,Scrivener,Limit,Here,enrollment,event,alumni,institution,fact,brochure,lessons,periods,Gross,Sweet,example,Given,signature,dismissal,contention,Amica,Hart,Alarm,degree,Sutton,Park,Corp,Guerin,Agency,Holmes,Protection,Where,allegations,arguments,decision,Footnotes,Footnote,incident,CPLR,alia,upon,pursuant,whether,instructional,supra
Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for.
Posted: August 12, 2013 Filed under: Colorado, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Accredited, AEE, BOEC, Breckenridge Outdoor Education Center, Colorado, Denver, Fraud, Magistrate, Misrepresentation, Release, Sit-Ski, Ski, skiing, Standards, Tether, United States district court 1 CommentThe release stopped the claims, which were thought out and tried to exploit the “accreditation” and “standards” created by a third party association.
Squires, v. Breckenridge Outdoor Education Center, 2013 U.S. App. LEXIS 9249 (10th Cir. 2013)
Plaintiff: Kimberly N. Squires
Defendant: Breckenridge Outdoor Education Center
Plaintiff Claims:
(1) The Release is as an invalid exculpatory agreement;
(2) Plaintiff’s decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107;
(3) Release was voidable because it was procured through fraud
Defendant Defenses: Release
Holding: for the defendant, the release was upheld
This case has been working its way through the courts for five years. The plaintiff was a legally blind child with cerebral palsy and cognitive delays. Her mother signed the necessary documentation to take a trip west with Camp Fire USA. Camp Fire USA contracted with the Breckenridge Outdoor Education Center (BOEC) to provide five days of skiing, a rope’s course and snow tubing.
The plaintiff was in a bi-ski which has an instructor holding tethers behind the skier. The BOEC instructor and the plaintiff were on their second run of the day. A third party skier lost control and skied into the tethers causing the BOEC instructor to lose the tethers. The plaintiff went down the hill unrestrained into a group of trees sustaining her injuries.
The plaintiff sued in Federal District Court located in Denver. A magistrate based upon a motion filed by the defendant dismissed the plaintiff’s negligence claim based on a release signed by the Plaintiff and her mother. The defendant’s motion also argued there was no evidence to support a gross negligence claim, which the magistrate did not deny.
The case proceeded to trial on the gross negligence claim. The jury returned a verdict for the defendant. The plaintiff then appealed the dismissal of the negligence claim based upon the release.
A magistrate is a quasi-judge. Magistrates in the Federal Court System are not appointed by the President and approved by the Senate, as all federal court judges are; but are appointed by the Chief Judge of the Federal District Court. The magistrate’s powers come from specific powers given to the magistrate by the judge who assigns a case to a magistrate or from an overall order from the Chief Judge of the court. Normally, a judge appoints a magistrate to handle all pre-trial matters. This frees up the judge to handle trials and those issues that may be appealed from the magistrate.
Summary of the case
The plaintiff appealed three issues concerning the validity of the release:
(1) the Release is as an invalid exculpatory agreement;
(2) [Plaintiff’s mother’s] decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107; [statute allowing a parent to sign away a child’s right to sue] and
(3) to the extent the Release is otherwise enforceable; it is, nevertheless, voidable because it was procured through fraud.
The 10th Circuit Court of Appeals went through a fairly in-depth analysis of release law in Colorado in making its decision. The court first looked into the requirements for a release to be valid under Colorado law. Releases are disfavored under Colorado law; however, they are not void. To be valid a Colorado Court must consider four factors:
(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
It was the fourth factor, whether the intent of the parties is set forth in clear and unambiguous language that is usually at issue. That means the language is clear and understandable so that the plaintiff when reading the document knew he or she was giving up their right to sue or recover for their injuries. The factor does not require the specific use of the word negligence and/or breach of warranty under Colorado law. However, the language of the release must express that the “intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”
Colorado courts look at the actual language of the release for “legal jargon” length, complication any likelihood of confusion or failure of the plaintiff to recognize the full extent of the release provisions. The court found that BOEC’s release met all of the requirements and was valid.
The plaintiff argued that the release failed to tell them that the plaintiff would be using a bi-ski and failed to disclose specific risks of this type of adaptive skiing. The court found that Colorado law did not require releases to refer to the specific activity that injured the plaintiff. Rather a release bars a claim if the release “clearly reflects the parties’ intent to extinguish liability for that type of claim.”
Note: the relaxed language allowed under Colorado law is not the same in other courts.
The plaintiff also developed a novel argument, which I have touched on before.
Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant.
Many times a third party or even another participant is the reason for the plaintiff’s injury. I write about injured parties suing other guests or third parties, such as skier v. skier collisions. Although the complaint does not name the outdoor recreation provider, specifically as a defendant, it does bring them in tangentially to a lawsuit. Here, the plaintiff argued the release failed because it did not notice the plaintiff of the risks brought to skiing by third parties.
However, the argument was not properly preserved or argued in the lower court so this court did not look at the argument. Appellate courts only will hear arguments that have been heard or argued in the lower court. Brand new arguments are ignored on appeal. It is important to argue everything you can in the lower court, to preserve all issues for appeal. This works both for claims of the plaintiff or defenses of the defendant.
The next argument, was there was not enough information in the release to satisfy the requirements of the statute which allows a parent to sign away a minor’s right to sue (C.R.S. 13-22-107). The plaintiff argued that because the risks of skiing in a bi-ski were not understood by the mother then the release should fail.
The court looked at two prior cases in Colorado that had looked at this issue: Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010) and Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) which I discuss in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele and Release stops suit for falling off horse at Colorado summer Camp.
Because the release did not state the risks of the activity, the court had to decide if it could look at extrinsic (other) evidence. The court in Hamel, allowed the defendant to show that prior experience of the parent in sending her daughter to camp and knowledge of other people who had been injured horseback riding was enough to show the mother knew the risks.
The court then allowed the knowledge of the mother and the letter sent with the release by BOEC to show the mother knew the general risks of skiing.
The final issue was the Fraudulent Inducement claim. The letter said the following:
(1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.
The mother made the following statements concerning what she believed based upon the letter.
Rather, she [plaintiff] relies on her mother’s statements that she “believed that BOEC was an accredited program,” and “that they had an [sic] accredited certified instructors that would manage a safe program.”
(“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).)
Although BOEC may or may not have been accredited by the AEE, the issue was the AEE did not have standards for skiing or adaptive skiing. The plaintiff argued that the letter, on one side of the release contradicted the release which was on the other side of the paper.
Add to the issue that BOEC admitted that it did not have what it advertised.
BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive [*30] ski program that Ms. Squires attended.
Marketing makes promises that Risk Management has to pay for.
The plaintiff argued that there was fraud in the inducement and because BOEC had advertised standards, BOEC did not have. On top of that the plaintiff argued that because BOEC did not have standards as they advertised BOEC was also misleading the plaintiff.
Ms. Squires argues that based upon the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.”
The letter and marketing of BOEC were enough to establish a fraud claim.
To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.
The release was presented to the plaintiff’s mother along with a “LETTER TO STUDENTS, PARENTS AND GUARDIANS.” The letter made several statements which the plaintiff brought to the attention of the court, which created legal issues that in many courts in other states, would have found for the plaintiff. Some of the parts of the letter were:
All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.
Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation.
The plaintiff could not prove that she had relied on the misstatements of BOEC. On top of the necessary requirement that there be reliance, the fraud or action of BOEC must be intentional.
Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.
Because the fourth element could not be provided the fraud claim was dismissed.
The final argument made by the plaintiff was the actions of BOEC were willful and wanton. The statute Colo. Rev. Stat. § 13-22-107(4) specifically prohibited releases signed by parents based to stop willful and wanton conduct.
Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Court defined willful and wanton conduct by relating the conduct to gross negligence.
“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.” “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” (“Conduct is willful and wanton if it is a dangerous course of action that is consciously chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”)
However, here again the plaintiff failed to show conduct that was purposeful or reckless. The court found the record was “devoid of sufficient evidence to raise a factual issue” at trial. Finding that the court held that claim was not met by the plaintiff.
So Now What?
The release in this case met the requirements of Colorado law. However, most other states, the release would not have been sufficient to stop the claims of the plaintiff. Besides, few states allow a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
BOEC does great work and does a good job. This like most facts giving rise to litigation are rare, even very rare. However, your release needs to be written to cover everything you possibly can. You can include a prohibition against injuries or claims caused by third parties. Would the outcome of this case been different if the third party who skied into the tethers been another BOEC student or instructor?
Releases can also be used to educate. If you do a good job of describing the risks in the release, then parents cannot make valid decisions, on whether or not they want to risk your kid with them. The defendant should have done a better job of explaining the risks of all activities within the program.
It is risky to rely upon outside information to prove knowledge of a release, unless you can prove the person saw and knew the information and have that proof in the release. This creates a 2-step process. 1.) You must prove you educated the customer or guest and 2.) You must prove the guest or customer was educated. The easiest way is to place this information on your website and then have your release reference the information.
Marketing makes promises that Risk Management must pay for. The advertising and statements made by the defendant in this case in many other jurisdictions would have gone the other way. Seriously, to make statements about awards, accreditation, or standards that do not exist are a great way to void a release and in many states increase the damages you may pay.
Other Cases: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234 (Dist Colo 2011)
Other articles where standards played a part in the decision in a negative way.
ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp
Plaintiff uses standards of ACCT to cost defendant $4.7 million
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent
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Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)
Posted: August 12, 2013 Filed under: Colorado, Legal Case, Skiing / Snow Boarding | Tags: Accredited, AEE, BOEC, Breckenridge Outdoor Education Center, Colorado, Denver, Fraud, Magistrate, Misrepresentation, Release, Sit-Ski, Ski, skiing, Standards, Tether, United States district court Leave a commentSquires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)
KIMBERLY N. SQUIRES, Plaintiff – Appellant, v. BRECKENRIDGE OUTDOOR EDUCATION CENTER, Defendant – Appellee.
No. 12-1199
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
715 F.3d 867; 2013 U.S. App. LEXIS 9249
May 7, 2013, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No.1:10-CV-00309-CBS-BNB).
Squires v. Goodwin, 829 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 129234 (D. Colo., 2011)
COUNSEL: Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for Plaintiff – Appellant.
David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the brief) of Grund ” Dagner, P.C., Denver, Colorado, for Defendant – Appellee.
JUDGES: Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
OPINION BY: McKAY
OPINION
Plaintiff Kimberly Squires filed this diversity action against Defendant Breckenridge Outdoor Education Center asserting claims for negligence and gross negligence following a ski accident in which she was injured. The magistrate judge granted Defendant’s motion for summary judgment in part, concluding Plaintiff’s mother, Sara Squires, had validly released any claim for negligence against Defendant by signing an acknowledgment of risk and release of liability. Plaintiff now appeals, arguing summary judgment was inappropriate because the Release [**2] is unenforceable for three reasons: (1) the Release is as an invalid exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not voluntary and informed, as required by [*870] Colorado Revised Statute Section 13-22-107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless voidable because it was procured through fraud.
Background
In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado. Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-profit organization dedicated to providing children, including children with disabilities, with opportunities and experiences for growth. Camp Fire USA had contracted with Defendant for a five-day wilderness program that included skiing, a ropes course, and snow tubing.
Before the trip, Defendant sent documents regarding the trip to Camp Fire USA, which in turn circulated them to the participants’ parents, including Mrs. Squires. The documents included a “Letter to Students, Parents and Guardians” (App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment of Risk & Release [**3] of Liability” (App. at 210 (capitalization omitted)).1 The Letter states, in pertinent part:
LETTER TO STUDENTS, PARENTS AND GUARDIANS
Greetings from Breckenridge! The BOEC staff looks forward to having you, your child or your family member join us on a course and would like to share the following information about who we are, what we do and the risks involved.
The Breckenridge Outdoor Education Center (BOEC), a non-profit organization in operation since 1976, provides outdoor adventure programs for people of all abilities. We offer programs for groups and individuals. All courses are tailored to the specific goals and abilities of our students.
. . . .
All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards. All activities offered are designed to pose appropriate challenges for students. These challenges provide a medium for adventure, learning and personal growth. Your ski lesson or course will involve risk, [**4] which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all [*871] risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure or activity is unclear to you.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledg[]ment of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places.
If you have any questions or comments, please do not hesitate to contact us. We welcome your suggestions and feedback.
(App. at 209.)
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
1 It is somewhat unclear whether the Release signed by Mrs. Squires was presented to her as a separate document from the Letter or as a single document [**5] with the Letter printed on one side and the Release printed on the reverse. The Letter itself refers to the Release “on the reverse side of this letter.” (App. at 209.) Plaintiff likewise initially represented the Release appeared on the reverse of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . . .).) However, during oral argument, Plaintiff’s counsel maintained this was a disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are standalone copies, and one copy happens to have a bleed-over language from the cover letter. It’s not clear . . . that that’s how that actually occurred when the Release was given to [Mrs. Squires] for signature.”) It is undisputed, however, that the Release the director of Camp Fire USA sent to the participants “included the cover letter that explained the waiver” (App. at 207), and that the two documents were sent as a single attachment (App. at 404, 407, 408).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
The accompanying Release provides:
ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)
In consideration of being allowed to participate in any way in Breckenridge Outdoor [**6] Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:
1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.
2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical [**7] facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.
(App. at 210.)
Plaintiff and her mother signed the Release on January 13, 2008. On that date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge and participation in Defendant’s program [*872] would include skiing, although she claims she was unaware of the precise equipment and methods her daughter would be using. Once in Breckenridge, Plaintiff was [**8] paired with a BOEC instructor and equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was injured when another, unrelated, skier lost control and skied into the tethers connecting Plaintiff and her instructor. The force of the collision caused the instructor to lose control of the tethers, and Plaintiff continued unrestrained down the trail and into a group of trees. She was injured when her bi-ski collided with a tree.
Following the accident, Plaintiff filed this action claiming Defendant’s negligence and gross negligence caused her injuries. Defendant moved for summary judgment, arguing the Release barred Plaintiff’s negligence claim and there was no evidence to support her gross negligence claim. The magistrate judge granted summary judgment in favor of Defendant on Plaintiff’s negligence claim, concluding Plaintiff’s mother had executed an enforceable exculpatory agreement that clearly and unambiguously expressed the parties’ intent to extinguish Defendant’s liability, and her decision to do so was voluntary and informed. The magistrate judge, however, denied Defendant’s motion on Plaintiff’s gross negligence claim. This claim proceeded to a jury, which [**9] found Defendant not liable. Plaintiff now appeals the grant of summary judgment on her negligence claim.
Discussion
HN1
“We review a district court’s decision to grant summary judgment de novo, applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (internal quotation marks omitted). 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). Colorado law applies in this diversity case.
I. Enforceability of the Release
Plaintiff argues the Release is unenforceable and, therefore, does not bar her negligence claim. She reasons that the Release is invalid under the four-part test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her mother did not make an informed decision, as required by Colorado Revised Statute Section 13-22-107.
A. Validity Under Jones
HN2In Colorado, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are not necessarily void.” Id. at 784. In [**10] determining whether an exculpatory agreement is valid, Colorado courts consider four factors: “(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, 623 P.2d at 376. Plaintiff challenges only the magistrate judge’s conclusion on the fourth factor.
Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach of warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Heil Valley, 784 P.2d at 785. Rather, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. In making this determination, [*873] Colorado courts 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).
The Release signed by Plaintiff and her [**11] mother clearly and unambiguously waives any negligence claims Plaintiff might have brought against Defendant. The Release begins by indicating it is signed “[i]n consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities.” (App. at 104.) It then warns that “it is impossible for the BOEC to guarantee absolute safety,” and identifies the potential risk of “loss or damage to personal property, injury, permanent disability, [and] fatality.” (Id.) The Release concludes, after only five short paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).) We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims I might state . . . including those claims based on negligence or breach of warranty.’ . . . There is nothing ambiguous about this portion [**12] of the agreement.” (first alteration in original)).
Plaintiff, however, contends the Release does not satisfy the fourth Jones factor because it failed to include that Plaintiff would be skiing using a bi-ski and failed to disclose specific risks associated with this form of adaptive skiing. She argues that Colorado law requires the Release to identify the specific activity being engaged in and describe specific associated risks. In support of this position, Plaintiff quotes from several other releases that have been upheld and claims it was their adequate detailing of risks that led the courts to conclude they were valid under the fourth Jones factor. However, even though the releases quoted by Plaintiff contain more detailed descriptions of the associated risks, their validity did not turn on this fact. Notably, none of the cases Plaintiff relies on evaluated the sufficiency of the description of the risks.
Contrary to Plaintiff’s argument, HN3Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured. See Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (concluding a release that did not mention [**13] the specific activity in which the plaintiff was injured was nevertheless valid because it “unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-75 (10th Cir. 1997) (concluding a release that did not include the specific activity and referred only to “the activity I am about to voluntarily engage in” was valid under Jones). Nor does it 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.” Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., No. 96-1438, 1997 U.S. App. LEXIS 11807, 1997 WL 265093 (10th Cir. May 20, 1997) (unpublished) (citation omitted). The Release clearly reflects precisely such an intent—Plaintiff and her mother agreed, “[i]n consideration of being [*874] allowed to participate in . . . [Defendant’s] programs, and related events and activities” to “release [Defendant] from any and all claims . . . and causes [**14] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a [BOEC] activity.” (App. at 104.)
Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant. Plaintiff raises her first theory of ambiguity for the first time on appeal. Because this argument was not properly preserved, we do not consider it. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (HN4“[A] party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second theory of ambiguity, we agree with the magistrate judge’s conclusion that the Release is not reasonably susceptible to her interpretation, which strains logic. Plaintiff specifically argues the portion of the Release that releases Defendant from liability is rendered ambiguous by the following sentence: “I [**15] understand that I share the responsibility for safety during all activities, and I assume that responsibility.” (App. at 104.) She contends that by “discussing two alternate allocations of risk in the same document, the Release does not clearly and unambiguously express the intent of the parties, and thus, is unenforceable.” (Appellant’s Opening Br. at 23.) However, these two provisions create no such ambiguity. The sentence on which Plaintiff relies clearly expresses the participant’s agreement to share in the responsibility of participating in a safe manner, whereas the release provision clearly expresses the participant’s intent to release Defendant from liability. As the magistrate judge concluded, the two are not mutually exclusive, and the first provision makes it no less clear that Plaintiff’s mother intended to release Defendant from liability for any negligence claim.
Because the Release contains clear and unambiguous language demonstrating Plaintiff’s mother intended to release any negligence claims Plaintiff might have against Defendant, it is valid and enforceable under Jones.
B. Informed Decision Under Colorado Revised Statute Section 13-22-107
We turn then to whether Mrs. [**16] Squires’s consent to the Release was voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was not because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis.
In 2002, the Colorado Supreme Court held “that Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence.” Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107(3). The following year, the General Assembly superseded Cooper through enactment of Section 13-22-107(3). Under this section,HN5 “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute “declare[s] that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010). “So long as the decision is voluntary and informed, the decision should be given [**17] the same dignity as decisions [*875] regarding schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. § 13-22-107(1)(a)(V).
The Colorado Court of Appeals has “assume[d] that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but required something more for the waiver of a minor’s prospective negligence claims.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) (citation omitted). In addition to the Jones factors, “[t]he General Assembly required that the consent to waiver by a parent be ‘voluntary and informed.'” Id. “A parent’s decision is informed when the parent has sufficient [*876] information to assess the potential degree of risks involved, and the extent of possible injury.” Id.
Since the enactment of Section 13-22-107, the Colorado Supreme Court has not addressed whether a release satisfies the voluntary and informed requirement of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from the Colorado Court of Appeals only as they may [**18] aid our ability to predict how the Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co., 396 F. App’x 496, 502 n.14 (10th Cir. 2010).
The Colorado Court of Appeals has twice considered whether a parent’s consent to release prospective negligence claims on behalf of a minor child was voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first occasion, the Colorado Court of Appeals determined it “need not set forth . . . precisely how much information is required for a parental release to satisfy the statute” because “[t]here is no information in [the] one-page registration form describing the event activities, much less their associated risks.” Wycoff, 251 P.3d at 1264. There, the plaintiff was injured while being towed in an innertube behind an ATV on a frozen lake as part of her participation in a three-day event called “Winterama 2005.” Id. at 1263. Before attending the event, the plaintiff’s mother signed a one-page registration and information form, which contained a purported release in the following paragraph:
I give permission for my child to participate in . . . Winterama 2005 and all activities associated with it. I further give consent [**19] for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.
Id. (emphasis and correction in original). Although the plaintiff knew the Winterama activities would include riding on an ATV-towed innertube, her mother did not. The court concluded that the mother’s waiver was not informed because the registration and information form did “not indicate what the activities would involve and certainly d[id] not suggest they would include ATV-towed inner-tube excursions around a frozen lake.” Id. at 1264. As a result, there was no information from which the plaintiff’s parents could “assess the degree of risk and the extent of possible injuries” from her participation in Winterama. Id. at 1265.
Shortly after the Wycoff decision, the Colorado Court of Appeals again addressed whether a parent’s consent to release prospective negligence claims on behalf of her child was informed. Borrowing from the language used in Wycoff, the court began by stating, HN6“A parent’s [**20] decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” Hamill, 262 P.3d at 952 (citing Wycoff, 251 P.3d at 1265). In addressing the degree of risk, the court concluded the plaintiff’s mother was sufficiently informed about the risks involved in horseback riding, the activity in which the plaintiff was injured, because she “knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity.” Id. at 953. In reaching this conclusion, the court first relied on the undisputed fact that the plaintiff’s mother “knew the activities [the camp] offered,” because her daughter “had attended [the camp] and ridden the camp horses for two years before the accident.” Id. at 952. In addition, “[t]he agreement clearly indicated that horseback riding was an activity available to campers.” Id. The agreement further identified some of the “risks associated with participation in any camping activities,” and emphasized that “a complete listing of inherent and other risks is not possible” and there are even “risks which cannot be anticipated.” Id. at 949 [**21] (emphasis omitted). The court finally considered the fact that the plaintiff’s mother “never contacted [the camp] to discuss the release form, and had no questions about the language of the release form when she signed it.” Id. at 953. In light of all of this evidence, the court concluded the plaintiff’s mother was adequately informed of the risks involved with horseback riding. The fact that she “may not have contemplated the precise mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not create a genuine issue of material fact.” Id. The relevant inquiry was whether the plaintiff’s mother was aware the plaintiff would be riding horses and was advised there were risks associated with that activity, which she was.
The court then turned to whether the plaintiff’s mother was provided with sufficient information “to assess the extent of possible injuries to [her daughter].” Id. In making this determination, the court again considered both the language of the release and the plaintiff’s mother’s independent knowledge and experience. The release contained broad language waiving “any claims of liability, for any injury, even death.” Id. (internal quotation marks omitted). [**22] The plaintiff’s mother was further aware that Christopher Reeve, whom she knew personally, had been injured falling off a horse, and was therefore “aware that there were significant risks associated with horseback riding.” Id. The court thus concluded that the agreement adequately disclosed the extent of potential injuries; it “did not need to include an exhaustive list of particularized injury scenarios to be effective.” Id.
Before turning to whether Plaintiff’s mother’s consent to release prospective negligence claims against Defendant was informed, we must first address the scope of the evidence we may consider in making this determination. The Colorado courts have yet to specifically address this issue. In Wycoff, the court “assume[d] for purposes of th[e] case that a facially deficient exculpatory contract could be cured by extrinsic evidence.” 251 P.3d at 1264. Relying on this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V) must be limited to the four corners of the Release unless we first determine that the Release itself is facially deficient, in which case the Release would be invalid under Jones. Defendant, on the other hand, maintains we may [**23] properly consider the Letter that accompanied the Release as well as Mrs. Squires’s actual knowledge on the day she signed the Release.
[*877] We predict the Colorado Supreme Court would likely follow the approach advocated by Defendant and adopted by the Colorado Court of Appeals in Hamill—in determining whether a parent’s consent to release prospective negligence claims is voluntary and informed, the parent’s actual knowledge and the information provided in connection with the release should be considered in addition to the language of the release itself. Unlike the fourth factor of the common-law Jones test, which focuses on whether the agreement itself expressed the parties’ intention in clear and unambiguous terms, the focus of the voluntary and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s decision. If we were to limit our review to the language of the Release itself, we would not be in a position to adequately evaluate whether the parent’s decision was informed. HN7To “give[] effect to the General Assembly’s intent in enacting” Section 13-22-107, Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003)—that a parent’s decision to release his or her child’s prospective negligence [**24] claims be honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. § 13-22-107(1)(a)(V)—we must be able to consider the relevant information the parent had and was provided in order to make that decision. Indeed, were we to limit our review to the language of the Release itself, it would put the General Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of recreational activities would be required to incorporate all relevant information they supplied to parents within the release itself while simultaneously ensuring the release is not “inordinately long or complicated,” Heil Valley, 784 P.2d at 785. To avoid such a result and give the fullest effect to the General Assembly’s intent, we consider not only the language of the Release, but also the information Defendant provided to Plaintiff and Mrs. Squires in connection with the Release as well as Mrs. Squire’s actual knowledge on the date she signed the Release.
Considering this evidence, we conclude Mrs. Squires’s decision to release Plaintiff’s prospective negligence claims against Defendant was informed. Mrs. Squires had sufficient information from which to evaluate the degree of risk Plaintiff [**25] faced. She admittedly knew “when she signed the document . . . that her daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the students and their parents specifically referred to “[y]our ski lesson” (App. at 209), and the accompanying participant application identified “Sit-Down” and “Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson . . . will involve risk, which may be greater than most people encounter in their daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for BOEC to guarantee absolute safety,” and warned that in addition to the “risks during outdoor programs,” including “falling,” “there may be other risks not known . . . or not reasonable foreseeable at this time.” (App. at 210.) After receiving this information, Mrs. Squires did not contact Defendant to discuss the Release and did not inquire as to the risks that were going to be involved with the ski trip. Although Mrs. Squires “may not have contemplated the precise mechanics of her daughter’s fall,” including the precise mechanics of skiing with a bi-ski, this fact “does [**26] not invalidate the release.” Hamill, 262 P.3d at 953. Like the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she was advised that there were risks, known and unknown, associated with the activity.” Id.
Mrs. Squires likewise had sufficient information from which to assess the extent [*878] of possible injuries to Plaintiff. The Release contained broad language releasing “any and all claims,” “of every nature,” “whether resulting from negligence or otherwise.” (App. at 210.) The Release additionally specifically warned of the possibility of “injury, permanent disability, fatality . . . and severe social or economic losses that may result from any such incident.” (Id.) Contrary to Plaintiff’s argument, the Release “did not need to include an exhaustive list of particularized injury scenarios,” such as the possibility of colliding with a tree after the instructor lost control of the tethers, “to be effective.” Hamill, 262 P.3d at 953.
We conclude the Release satisfies both the Jones test and the voluntary and informed requirement of Section 13-22-107 and is, therefore, enforceable.
II. Fraudulent Inducement
Plaintiff argues in the alternative that even if the Release is [**27] enforceable, it should nevertheless be set aside because it was procured through fraud.2 HN8“A release is an agreement to which the general contract rules of interpretation and construction apply. Like any contract, a release procured through fraud can be set aside.” Chase v. Dow Chem. Co., 875 F.2d 278, 281 (10th Cir. 1989) (internal quotation marks and citation omitted). To establish fraud, a plaintiff must prove
(1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.
Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010). Furthermore, “[t]he misrepresentation must be made with the intent to deceive.” Club Valencia Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1026 (Colo. App. 1985).
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
2 Plaintiff first alluded to this argument in the hearing on Defendant’s motion for summary judgment. [**28] The magistrate judge then allowed supplemental briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant argued Plaintiff’s late reliance on the fraud defense “is neither proper nor excusable.” (App. at 378.) In its order, the magistrate judge considered Plaintiff’s fraud defense without discussing its timeliness or procedural propriety. Defendant has not argued on appeal that the magistrate judge erred in considering Plaintiff’s argument. We therefore have no occasion to address whether Plaintiff’s belated fraud defense was properly considered in the first instance.
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Plaintiff contends the Letter, which accompanied the Release, contained three fraudulent misrepresentations: (1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.” (App. at 209.) However, Plaintiff has offered no evidence that statements two and three were false; that is, Plaintiff has [**29] pointed to no evidence that Defendant, generally, was not accredited by AEE or that AEE does not perform the functions described in statement three. Plaintiff’s argument then, hinges on the allegedly fraudulent misrepresentation in the first statement.
Plaintiff maintains the first statement constitutes a fraudulent misrepresentation because AEE does not have standards for [*879] adaptive skiing, and Defendant’s adaptive ski program is therefore at least one activity that is not “conducted in a manner consistent with the highest standards, as defined by [AEE].” (Id.) Accepting, without deciding, that this statement constitutes a fraudulent material misrepresentation, Plaintiff has failed to provide any evidence that Mrs. Squires relied on this misrepresentation in deciding to sign the Release. Plaintiff points to no evidence that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE standards. Rather, she relies on her mother’s statements that she “believed that BOEC was an accredited program” (App. at 354), and “that they had an [sic] accredited certified instructors that would manage a safe program” (App. at 357). (See [**30] also App. at 353 (“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).) These statements, even when viewed in the light most favorable to Plaintiff, do not support her position that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE’s standards.3 Notably, Mrs. Squires made no mention of AEE or its standards when discussing her beliefs about Defendant’s program. Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a material misrepresentation made by Defendant in the Letter, the magistrate judge properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently induced to sign the Release.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
3 While Mrs. Squires’s testimony may suggest she believed that Defendant’s adaptive ski program was accredited by AEE, the Letter made no such representation. Rather, this purported representation was inferred by Mrs. Squires from the three statements listed above in connection with the representation that “all courses are [**31] tailored to the specific goals and abilities of [the] students, all activities offered are designed to pose appropriate challenges for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s misunderstanding of Defendant’s Letter does not excuse her from the consequences of signing the Release. See Shoels v. Klebold, 375 F.3d 1054, 1070 (10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for Appellants’ acceptance, and so they cannot evade the normal limitations on relief from the consequences of their mistake.”).
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Conclusion
For the foregoing reasons, we AFFIRM the magistrate judge’s order granting summary judgment to Defendant on Plaintiff’s negligence claim.
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Will New York entertain counterclaims for attorney fees and costs to a prevailing defendant?
Posted: July 29, 2013 Filed under: New York, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: assumption of the risk, Hang gliding, Negligence, New York, New York City, Paragliding, Plaintiff, Public Policy, Recreation, Release, Skydiving, Summary judgment, Tandem, Tandem Skydiving 3 CommentsUnderlying claim is dismissed for assumption of the risk. Falling out of the sky is obviously dangerous.
Plaintiff: Lisa Nutley
Defendant: SkyDive the Ranch
Plaintiff Claims: Negligence
Defendant Defenses: Release and Assumption of the risk, counterclaim for attorney fees based on the release
Holding: for the defendant on the claims based on assumption of the risk
This is an interesting case. To understand the case, I’ve also posted the trial court opinion leading to the appeal of this case.
The spouse of the plaintiff bought her a tandem sky dive as a gift. During the jump, the main shoot did not open. The reserve shoot did open. During the jump, the plaintiff broke her third and fourth fingers on her right hand. She sued for negligence.
The defendant filed a motion for summary judgment to dismiss the plaintiff’s claims based on the three releases she had signed and the video and instruction she had watched.
The trial court denied the motion for summary judgment (Nutley v. Skydive The Ranch, 22 Misc. 3d 1122(A); 881 N.Y.S.2d 365; 2009 N.Y. Misc. LEXIS 274; 2009 NY Slip Op 50223(U); 241 N.Y.L.J. 23) and the defendant appealed.
Summary of the case
The basis of the denial of the motion for summary judgment is a New York statute which prohibited the use of a release for recreational activities. New York General Obligations Law (“GOL”) §5-326. The lawsuit was dismissed because the trial court found the defendant operated a sky-diving facility as a recreational business. The Defendant had argued that it was an educational business which does not fall under §5-326.
The appellate court found the releases were void under the New York statute.
The appellate court found that the risks of the activity were fairly obvious, and the plaintiff had assumed the risk of her injuries.
Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport
The court then went back to its decision on releases and found the language attempting to release the defendant for negligence was void; however, the rest of the release was still valid.
So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact…
Part of one of the releases had included a clause that any suit required the plaintiff to pay the defendant’s damages of attorney fees and costs. The defendant filed a counterclaim against the plaintiff based upon this clause. The court did not rule on this issue finding that the trial court needed to look into whether this clause violated public policy as advanced by the statute that voids releases.
As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts.
The matter was sent back to the trial court to determine if the counterclaim for attorney fees and costs of the defendant violated New York Public policy and for any defenses the plaintiff may have to the defendant’s counterclaims.
So Now What?
The defendant lost on the defense of release, but won on the defense of assumption of the risk. The defendant might win on the opportunity to sue the plaintiff for attorney fees and costs in the assumption of risk agreements (since the releases are void).
This case appears to be fairly clear in its approach and decision. You can get hurt if you fall out of the sky. That is pretty obvious. Therefore, you assume the risk.
The argument about the sky-diving facility being an educational business rather than recreation is discussed in the trial court decision. That argument made by the defendant was based on Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). In Lemoine, the university was subject to the statute which voids releases in New York, but because it was an educational organization and not one for recreation, the statute did not apply.
What is different is the issue that the court held out the possibility that a demand for attorney fees and costs to a prevailing defendant may be viable in New York.
Four years has passed since this decision, and no other cases have been reported. Consequently, as of this time we do not have a decision to rely upon for this issue.
Even if there is not a valid claim because it violates public policy, there are several other theories on how a defendant can recover attorney fees in situations like this that may survive.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)
Posted: July 29, 2013 Filed under: Assumption of the Risk, Legal Case, New York, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: assumption of the risk, Public Policy, Release, Skydiving, Paragliding, Hang gliding, Tandem, Tandem Skydiving Leave a commentNutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)
[*1] Lisa Nutley, Plaintiff-Respondent, v SkyDive the Ranch, Defendant-Appellant.
862, 108665/06
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999
August 11, 2009, Decided
August 11, 2009, Entered
PRIOR HISTORY: Nutley v. Skydive The Ranch, 22 Misc. 3d 1122A, 881 N.Y.S.2d 365, 2009 N.Y. Misc. LEXIS 274 (2009)
CORE TERMS: counterclaim, summary judgment, sport, attorney’s fees, enter judgment, recreational activity, parachute, default
COUNSEL: [***1] The Law Offices of David M. Schreier, New York (Steven E. Kurtz of counsel), for appellant.
McMahon, Martine & Gallagher, LLP Brooklyn (Patrick W. Brody of counsel), for respondent.
JUDGES: Tom, J.P., Friedman, Catterson, Moskowitz, Richter, JJ.
OPINION
[**530] Order, Supreme Court, New York County (Martin Shulman, J.), entered January 28, 2009, which denied defendant’s motion for summary judgment dismissing the complaint and for a default judgment on its counterclaim for attorney’s fees and [**531] costs, unanimously modified, on the law, the motion granted to the extent of awarding defendant summary judgment, the complaint dismissed, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly. Plaintiff is directed to respond to defendant’s counterclaims within 60 days of the date of this order.
Defendant demonstrated prima facie entitlement to summary judgment on the doctrine of assumption of risk. Plaintiff was engaged in a sport or recreational activity, the commonly appreciated risks of which are inherent in, and arise out of, the nature of the sport generally and are consequent upon such participation (see e.g. Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Here, the risk [***2] of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport (id. at 485).
So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact (see Caruso v Allnet Communication Servs., 242 AD2d 484, 485, 662 N.Y.S.2d 468 [1997]). As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts (cf. Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297, 177 N.E.2d 925, 220 N.Y.S.2d 962 [1961] [exculpatory clause not barred by “overriding public interest”]), the parties have not briefed the issue, and we do not reach it (see Brown v Christopher St. Owners Corp., 87 NY2d 938, 939, 663 N.E.2d 1251, 641 N.Y.S.2d 221 [1996]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 176, 710 N.Y.S.2d 54 [2000]). [***3] Defendant’s motion to enter judgment by default (CPLR 3215[c]) was appropriately denied in the exercise of discretion (cf. Charles F. Winsom Gems v D. Gumbiner, Inc., 85 A.D.2d 69, 71, 448 N.Y.S.2d 471 [1982], [*2] affd 57 NY2d 813, 441 N.E.2d 1118, 455 N.Y.S.2d 600 [1982]), and plaintiff should be afforded the opportunity to assert any defenses she might have to defendant’s counterclaims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 11, 2009
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Is a Photo Release valid when it is in a Release?
Posted: July 15, 2013 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Contract, Inc., Maureen S. Bateman, Model Release, New York, New York Marathon, New York Roadrunners Club, Perrier, Photo Release, Photograph Release, Release, Sport Photo and EMS, Summary judgment 1 CommentNew York court said maybe not.
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Plaintiff: Maureen S. Bateman
Defendant: Sport Photo and EMS, Inc.
Plaintiff Claims: Violation of New York Civil rights law §§ 50, 51 (misrepresentation of release signed to enter a road race)
Defendant Defenses: release and contract
Holding: for the plaintiff
This case is about a little clause found in numerous releases in the outdoor recreation industry. The clause is the photography release in the release.
In this case, the plaintiff signed the release to enter the New York Roadrunners Club (NYRRC) 10K road race. The plaintiffs photograph was assigned to the defendant who used it to advertise another race. The defendant was in the business of soliciting contestants to buy photographs when they ran a race.
The plaintiff found out about the use of her photograph when the defendant used it to attempt to market the New York Marathon.
Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon.
The plaintiff sued over the issue. The defendant filed a motion for summary judgment which this court denied.
Summary of the case
The plaintiff argued there were two legal issues at stake:
…“whether plaintiff, by signing the so-called “release”, consented to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assignment by NYRRC to Sportphoto.”
Normally contracts are only interpreted by the language of the contract. No other evidence can be brought into to interpret the contract. Specific words in a contract are given the definition found in the contract, if not defined there, then as used in the industry or as defined by courts in other cases.
At issue was the interpretation of the word in the photo release, legitimate. In this case, however, the court found a different interpretation for the word “legitimate.” The defendants argued the word should be defined as found in a dictionary, which would be the definition that would normally be used.
Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.
Releases under New York law are interpreted according to New York contract law.
The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did not desire or intend to dispose of.”
The reason why the court stretched was based upon the plaintiff signed a release to race and also gave up her photographic rights.
The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering.
The plaintiff raised valid issues, bordering on misrepresentation, about how her legal agreement was reached. “…the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace.”
The court could find that whether the plaintiff intended to run a road race or give up her photo rights. “Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.”
The plaintiff also argued that the assignment between the NYRRC, and the defendant was invalid.
In both cases, the court stated that there was a genuine issue of fact that had to be reviewed by a jury.
So Now What
Like any clause in a contract or release, make sure if your guests want to read the release they have the opportunity to read the release.
You may want to identify the photo release with a bold heading so people cannot argue you tried to hide it.
I would also suggest that when you are going to use someone’s photograph you contact them and offer an incentive for using their release; a free trip, a discount, a T-shirt even. Most people if given the opportunity would love to have their photograph used. By providing your guests with some type of consideration (money) post contract you are at least going to find out how they feel and arguing you “paid” for the right to sue their photos.
This case has me wondering.
 |
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. To find out the purpose of this website go here.
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Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Posted: July 15, 2013 Filed under: Legal Case, New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Inc., Maureen S. Bateman, Model Release, New York, New York City, New York Marathon, New York Roadrunners Club, New York Supreme Court, Perrier, Photo Release, Photograph Release, Plaintiff, Release, Sport Photo and EMS, Summary judgment Leave a commentTo Read an Analysis of this decision see: Is a Photo Release valid when it is in a Release?
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.
No. 81 Civ. 4790 (MJL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1983 U.S. Dist. LEXIS 15461
July 14, 1983
COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.
ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.
OPINION BY: LOWE
OPINION
MEMORANDUM OPINION AND ORDER
MARY JOHNSON LOWE, D. J.
This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. 1 Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club [“NYRRC”] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.
1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).
Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.
The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.
[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. 2 The Court is convinced on the record before it that this question should be resolved by the trier of fact.
2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.
This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.
Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.
Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.
Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.
We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.
For the reasons stated above, defendants’ motion for summary judgment is hereby denied.
It is So Ordered.
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Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Posted: July 8, 2013 Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) | Tags: CA, California, California law, correctly, Defendant, dismount, dive, Duty of care, equestrian, Equine, extreme departure, Gross negligence, Horse, horseback riding, inappropriate, Inc., inherently, instructor, Jim Moss, jumping, lesson, Manual, material fact, Mill Creek Equestrian Center, misconduct, Negligence, notice of appeal, Ordinary Negligence, Plaintiff, recommended, Release, rider, riding, ring, risks inherent, Sport, standard of conduct, Summary judgment, totally outside, training, triable issue, United States, willful Leave a commentAs an expert you just can’t state facts, you have to prove your facts.
Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218
Plaintiff: Nicole Azad
Defendant: Mill Creek Equestrian Center, Inc.
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: Release
Holding: for the defendant
This is a horseback riding case. The plaintiff was a beginner rider taking lessons from the defendant. The defendant’s instructor placed her in the jumping ring for training. Another horse in the ring spooked, which spooked the horse the plaintiff was riding. The plaintiff’s horse jumped the ring fence. The plaintiff fell off breaking her leg.
The plaintiff had signed a release before starting the lessons. The release was well labeled stating on each page that it was a release. The release also had a notice right above the signature line indicating the signor was giving up their legal rights.
The release, however, specifically stated that it did not prevent claims for gross negligence.
The plaintiff sued for negligence and after getting educated by the defendant, for gross negligence. The trial court dismissed the case after the defendant filed a motion for summary judgment. The plaintiff appealed.
Summary of the case
On appeal the plaintiff claimed:
…there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.
The court first looked at the validity of the release against a case argued by the plaintiff that found a release was insufficient. The court then only compared the release in this case to the arguments made in the case raised by the plaintiff.
The release was a two-page document. On the first page, it contained a titled, “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” On all other pages, it stated, “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, there was a statement that the signer was aware of the legal issues and acknowledgement of the legal issues.
The court found the release worked to stop claims of ordinary negligence but not gross negligence.
The court then reviewed California law on the duty owed by instructors in sports.
By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'”
A sports instructor must intentionally injury a student or engages in conduct that is totally outside the range of ordinary activity to be liable. Other than those two issues, the participant assumes the risk of the sport.
… a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’
In this case, the plaintiff had not raised any issues or facts, other than statements of the plaintiff’s expert witness who could support a claim of gross negligence. The plaintiff’s expert alleged the actions of the defendant were grossly negligent but did not demonstrate any facts showing an “extreme departure from the ordinary standard of conduct.” The court also pointed out the plaintiff stated the instructor was inadequately trained but not support her statement with proof.
The court in stating there was not proof of gross negligence stated:
Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity.
The court upheld the dismissal of the plaintiff’s complaint.
So Now What?
This release had 2 great points. The title and the heading on each page said this is a release. I’ve continuously stated that you cannot hide your release in other documents. It must be presented as a release to the signor and must plainly set forth the signor is giving up their legal rights.
However, don’t help the plaintiff sue you? Here the release said this document is no good if you prove I was grossly negligent. So what did the plaintiff need to do, prove gross negligence to win.
The facts of the case were pretty tame, and the injury to the plaintiff was relatively minor.
The court did look at what it would take to prove gross negligence from reviewing other cases. One was having a manual and showing an extreme departure from the manual.
If you write it down as the “way,” you better follow it.
|
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. To find out the purpose of this website go here.
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@2013-23 Summit Magic Publishing, LLC
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Inflatable climbing wall case injury from a party thrown by a health club stretched the release
Posted: June 10, 2013 Filed under: California, Climbing Wall, Release (pre-injury contract not to sue) | Tags: California, Climbing, Climbing Wall, Health club, Indoor, Inflatable Climbing Wall, Paramount, Recreation, Release 2 CommentsIt took an appeal of the issues to win, the trial court held for the plaintiff.
Citation: Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380
Plaintiff: Robert Vinson
Defendant: Paramount Pictures Corporation et al.,
Plaintiff Claims: (1) the trial court erred in denying appellants’ motion for nonsuit because a release and waiver signed by Vinson precluded a finding of liability; (2) the trial court erred in finding the primary assumption of the risk doctrine did not apply, and its failure to instruct the jury on the relevant duty owed by appellants was prejudicial; and (3) the trial court abused its discretion by granting a partial new trial on the limited issue of damages.
Defendant Defenses: Release
Holding: Case dismissed based on the release
The case arises from a fall off an inflatable climbing wall at a party. The party was hosted by a health club. The plaintiff had joined a health club or employee club and when he signed a release. It is not clear from the case what the purpose of the club was, but it seems to be a fitness club.
As part of the function of the club, the club hosted a party or event. The party had numerous amusements, including a climbing wall which was operated by a third party. The two individuals operating/belaying the wall claimed they had received an hour’s lesson in how to operate the wall, including how to belay climbers and had not seen the instructions on how to operate the inflatable wall.
The plaintiff argued no one gave him any instructions on how to put on the harness or how to climb on the wall.
While being lowered the plaintiff claimed he fell from the top of the wall landed on the inflatable apron and then bounced onto the concrete. The operators testified the plaintiff was bouncing on the wall and fell when he was 50 to 70% of the way down and never hit the concrete.
The plaintiff sued for his injuries. The trial court threw out the release and a jury awarded the plaintiff $70,000. The plaintiff and defendant appealed.
Summary of the case
The plaintiff appealed the jury trial arguing he was not awarded enough money. The defendant appealed arguing the release should have stopped the suit. The court looked at the release and finding the release was valid did not look at the plaintiff’s appellate arguments.
The court looked at negligence law in California and found generally; persons have a duty to use due care to avoid injuring others, and they can be liable if they do breach the duty causing injury.
A release under California law must be “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” The defining legal issue in determining if a release was valid was:
…whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.
The court had to piece together the language in the release; however, the court could find the scope of the release covered “events” of the club, which included the climbing wall and therefore, the release was valid and stopped the claims of the plaintiff.
So Now What?
First, this is another case where a release for one purpose was stretched to cover another. Luckily, it worked. Probably, the event or the climbing wall should have had its own release. The risks found in a gym are different than the risks found at a party, unless the gym had a climbing wall. Even if there was a climbing wall, the release for a gym is not written for an event.
Second, the obvious issues of how the inflatable climbing wall was operated should raise red flags. If you hire a third party to come to your event and run an activity with greater than normal risks, simple falls, at a party, then look into how the risk will be run and maybe the training and/or experience of the people operating the event or amusement.
Third, based upon the wide disparity opinions on what happened, there was no post-accident follow up. No one collected any witness statements, took pictures, or attempted to determine what happened. Granted the plaintiff’s version of events will always differ from the defendants. But one side or the other can always be bolstered by a little paperwork.
Taking care of the injured plaintiff is always the first priority. However, normally there is someone who could have collected statements and taken pictures.
Fourth and Last, the statement by the court “whether the particular risk of injury suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release” is great news and at the same time an excuse for using poor releases. It is hard to describe the mental and emotional toll of a trial and an appeal.
However, I can describe the cost. You will have weeks away from your work for both, you and employees. Essentially, a trial will require you to hire someone to replace you part-time and at least another employee full-time to employee to replace others.
It isn’t worth it. Get a well-written release for your business, company or activity.
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Minors and Releases
Posted: June 5, 2013 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Colleges and Universities, education, minors, parent, PowerPoint, Presentation, Release, Right to Sue, San Antonio, Sport and Recreation Law Association, SRLA, Texas, TX Leave a commentWhere can a parent sign away a minor’s right to sue and where that will not work.
Audience: Sport and Recreation Law Association
Location: San Antonio, Texas
Date: 2009
Presentation: Minors and Releases http://rec-law.us/ZjzUK9
This presentation was given to highlight why minors cannot sign a release and why only a few states have allowed a parent to sign away a minor’s right to sue.
For other articles about this subject or for the latest information about the topic see:
States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan
$5 Million because a church took a kid skiing and allowed him to……..skihttp://rec-law.us/wCXYBH
A Parent (or Guardian) is still in control of a child, no matter what the volunteer may want. http://rec-law.us/zN0jcl
Adult volunteer responsibility ends when the minor is delivered back to his parents. http://rec-law.us/wynrnO
Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue. http://rec-law.us/Aegeo3
Courtney Love in Outdoor Recreation Law http://rec-law.us/yEpdBR
Delaware decision upholds a release signed by a parent against a minor’s claims http://rec-law.us/MWKMmt
Delaware holds that mothers signature on contract forces change of venue for minors claims.http://rec-law.us/JMvEMv
Iowa does not allow a parent to sign away a minor’s right to sue. http://rec-law.us/AaLwBF
Maine decision on minor injured in ski school conforms how most states will interpret the facts. http://rec-law.us/yxZN2M
Maine follows the majority and does not allow a parent to sign away a minor’s right to sue. http://rec-law.us/zPfJ9V
Minnesota decision upholds parent’s right to sign away a minor’s right to sue. http://rec-law.us/xyeuOH
New Florida law allows a parent to sign away a child’s right to sue for injuries. http://rec-law.us/Au1dGE
North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations http://rec-law.us/ACYg0m
North Dakota decision allows a parent to sign away a minor’s right to sue.http://rec-law.us/SDYQHG
Ohio Appellate decision upholds the use of a release for a minor for a commercial activity. http://rec-law.us/LuYZbv
Release stops suit for falling off horse at Colorado summer Camp. http://rec-law.us/wtRyK5
Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele. http://rec-law.us/yVPR8S
States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan
Statutes and prospective language to allow a parent to sign away a minor’s right to sue. http://rec-law.us/zkGtcW
Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue. http://rec-law.us/MCh75O
Texas makes it easier to write a release because the law is clear. http://rec-law.us/yBjZBb
Wrong release for the activity almost sinks YMCA http://rec-law.us/A9AW0P
You’ve got to be kidding: Chaperone liable for the death of girl on a trip http://rec-law.us/zqxJTf
Remember the law changes constantly, this presentation may be out of date. Check back at www.recreation-law.com and with your attorney to make sure the information is still valid.
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Decisive Supreme Court Decision on the Validity of Releases in Oklahoma
Posted: May 27, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Oklahoma, Release (pre-injury contract not to sue) | Tags: Artillery Hunt Riding Stables, Elizabeth M. Schmidt, Equine, Fort Sill, Horse, OK, Oklahoma, Oklahoma Supreme Court, Release, stable, State supreme court, Supreme Court, Supreme Court of the United States, Texas, Trail Ride, United States, United States of America Leave a commentSchmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
Case arose as a certified question from the US District Court from Western Oklahoma.
This is a request by the Federal District Court in Western Oklahoma for clarification on a legal point. When a Federal court has to apply state law and there are no decisions for the Federal court to rely upon, it certifies the question to the state Supreme Court for clarification. That is how this case arose.
The plaintiff went for a trail ride at Artillery Hunt Riding Stables at Fort Sill, Oklahoma. Because the stable was owned by the Army that is the reason for the suit to be brought in Federal Court and why the defendant is the USA.
While on the ride, the “ride leader” allegedly rode up behind the plaintiff and frightened her horse causing the horse to throw her. The plaintiff sued saying that the US “(1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader.” Both claims are based in negligence.
The Federal Court could not find case law to rely upon to issue an opinion on the defendant’s defense of release so it sent the case the Oklahoma Supreme Court.
The Oklahoma Supreme Court did not decide the case. The court only used the facts as supplemental information in making its decision concerning releases in Oklahoma.
The Oklahoma looked at the question in two parts:
1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?
2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?
The court responded this way: “
We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy.
We note that exculpatory clauses cannot relieve one from liability for fraud, willful injury, gross negligence or violation of the law.
Summary of the case
This decision is a well-written look at how Oklahoma and many other states look at releases. Generally, releases are upheld in Oklahoma. However, although releases are “generally enforceable” releases are distasteful. The test in Oklahoma on whether a release is valid is:
(1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;
(2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and
(3) enforcement of these clauses must never
(a) be injurious to public health, public morals or confidence in administration of the law or
(b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.
The court then described what clear and unambiguous intent was:
A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall fairly within the contemplation of, the parties. The clause must also identify the type and extent of damages covered — including those to occur in futuro.
The court did differentiate between an exculpatory clause (release) which limits suits and clauses, which limit damages under Oklahoma law.
Bargaining power was described by the court in looking at releases as:
Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services.
The final issue, a release that violates public policy was described as:
While courts may declare void those portions of private contracts which contradict public policy, they must do so only with great caution. Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property.
The court summed up its opinion on what a release must have under Oklahoma law as:
“any agreement having as its purpose the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved.
However, if any single requirement of the three requirements is not met by a release, then the release must fail.
So Now What?
You never find a decision that says this is what you must do to be legal. This decision from the Oklahoma Supreme Court explains step by step what an attorney must do to write a release.
Plaintiff: Elizabeth M. Schmidt
Defendant: United States of America (Artillery Hunt Riding Stables at Fort Sill, Oklahoma)
Plaintiff Claims: Negligence in the original Federal Action
Defendant Defenses: Release
Holding: Sent to the Federal Court for determination based on the decision here.
What do you think? Leave a comment.
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Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
Posted: May 27, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Oklahoma, Release (pre-injury contract not to sue) | Tags: Artillery Hunt Riding Stables, Assumption of risk, Elizabeth M. Schmidt, Equine, Federal Tort Claims Act, Fort Sill, Horse, Negligence, OK, Oklahoma, Oklahoma City, Release, stable, Trail Ride, United States, United States district court, United States of America Leave a commentSchmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
ELIZABETH M. SCHMIDT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
No. 85,545
SUPREME COURT OF OKLAHOMA
1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38
February 27, 1996, FILED
COUNSEL: Alan D. Rosenbaum, Lawton, OK, Reggie N. Whitten, Douglas A. Terry, MILLS & WHITTEN, Oklahoma City, OK, For Plaintiff.
Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, For Defendant.
JUDGES: KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur; WILSON, C.J., concurs in part and dissents in part.
OPINION BY: OPALA
OPINION
[*872] CERTIFIED QUESTIONS FROM A UNITED STATES COURT
Opala, J.
The United States District Court for the Western [**2] District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:
“1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?
2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?”
We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. We note that exculpatory clauses cannot relieve one from liability for fraud, [**3] willful injury, gross negligence or violation of the law. 1
1 See infra notes 8 and 15.
I
ANATOMY OF THE FEDERAL LITIGATION 2
2 The material accompanying the certified questions consists of the parties’ pleadings and motions filed in the certifying court. The factual recitals in the anatomy of the federal litigation were gleaned from this material and from the briefs submitted to this court.
Elizabeth M. Schmidt [plaintiff or Schmidt] went to the Artillery Hunt Riding Stables [Stables] at Fort Sill, Oklahoma 3 to engage in recreational horseback riding. Before participating in this activity she executed a Rental Riding Agreement [contract]. The contract contained the following clause [exculpatory clause or clause]:
“In consideration for being allowed to participate in Horse Rental, I hereby release [**4] the Artillery Hunt Center and its employees and/or ride leaders . . . and the United States Government from any liabilities or claims arising from my participation. I agree that I will never prosecute or in any way aid in prosecuting any demand, claim or suit against the United States Government for any loss, damage or injury to my person or property that may occur from any cause whatsoever as a result of taking part in this activity.” [Emphasis supplied.]
3 The Stables are admittedly an instrumentality of the U.S. Army.
Schmidt claims that, during the ride, a “ride leader” employed by the Stables negligently rode up behind her, frightened her horse and caused it to throw her to the ground, then fall on and injure her.
[*873] Schmidt brought a negligent tort complaint against the United States 4 alleging that the latter (1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader. 5 By its summary [**5] judgment motion the United States interposed the exculpatory clause, by which it sought to defeat Schmidt’s claim.
4 Schmidt’s action invokes the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671 et seq. [HN1] By the FTCA’s terms the United States’ liability is measured according to the law of the state in which the wrongful act occurred. 28 U.S.C. § 2674.
5 Schmidt charges the United States with actual notice of the employee’s unfitness to lead the ride.
II
THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT
[HN2] While the actionability of state-law claims identified in the submitted questions may be tested when answering the queries posed, it is not this court’s province to intrude (by the responses to be given) upon the federal court’s decision-making process. Because this case is not before us for decision,we refrain, as we must, from applying the declared state-law responses to the facts elicited or to be determined in the federal-court litigation (whether [**6] made by evidence adduced at trial or by acceptable probative substitutes, called “evidentiary materials”, for use in the summary adjudication process). 6 The task of analyzing the impact of today’s answers must be and hence is deferred to the certifying court.
6 Brown v. Ford, Okl., 905 P.2d 223, 226 n. 3 (1995); Bonner v. Oklahoma Rock Corp., Okl., 863 P.2d 1176, 1178 n. 3 (1993); Shebester v. Triple Crown Insurers, Okl., 826 P.2d 603, 606 n. 4 (1992).
III
THE PARAMETERS OF THE CLAUSE’S ENFORCEABILITY
[HN3] By entering into an exculpatory agreement of the type dealt with here 7 the promisor assumes the risks that are waived. 8 [*874] While these exculpatory promise based obligations are generally enforceable, 9 they are distasteful to the law. 10 For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant 11 from liability for the sought-to-be-recovered [**7] damages; 12 (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; 13 and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. 14
7 For a discussion of the difference between a contract clause totally exempting one from culpability and one which merely limits the financial extent of that liability, see Elsken v. Network Multi-Family Sec. Corp., Okl., 838 P.2d 1007, 1008 (1992); Fretwell v. Protection Alarm Co., Okl., 764 P.2d 149, 151 (1988). In both of those cases a burglar alarm company sought to limit its liability for loss due to theft of customers’ property via a liquidated damages provision. The propriety of similar liability-limiting contract clauses is subject to an analysis grounded in contract law that lies outside the realm of tort jurisprudence. See MacNeil, Power of Contract and Agreed Remedies, 47 CORNELL L. Q. 495 (1962).
[**8]
8 [HN4] Express assumption of risk occurs in those cases where the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence. Thomas v. Holliday by and through Holliday, Okl., 764 P.2d 165, 168 n. 8 (1988); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1129 (La. 1988); Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780, 783 (1983). The terms of RESTATEMENT (SECOND) OF TORTS § 496B (1965) provide:
[HN5] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” [Emphasis added.]
For a discussion of the jurisprudential requisites for determining whether an exculpatory contract violates public policy, see infra Part IIIC. See also in this connection V. SCHWARTZ, COMPARATIVE NEGLIGENCE § 9.1 at 154 (1974). [HN6] Express consent, which might also be called “waiver” or “release”, will usually bar recovery by the plaintiff unless there is a statute or established public policy against it. Murray, supra at 1129. The two statutory provisions cited by Schmidt are inapposite here. The terms of the first, [HN7] 15 O.S.1991 § 212, provide:
“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another or violation of the law, whether willful or negligent, are against the public policy of the law.” [Emphasis added.]
This section forbids agreements relieving one from liability for fraud, willful injury or violation of the law. Its terms cannot be read to embrace contracts affecting liability for simple negligence. We assume — for want of contrary notice from the federal-court record — that in this case there is no fraudulent or willful conduct.
The terms of the second section, [HN8] 15 O.S.1991 § 212.1, provide:
“Any notice given by a business entity which provides services or facilities for profit to the general public and which seeks to exempt the business entity from liability for personal injury caused by or resulting from any acts of negligence on its part or on the part of its servants or employees, shall be deemed void as against public policy and wholly unenforceable.” [Emphasis added.]
[HN9] This section’s terms apply to promises imposed without the promisor’s adequate knowledge through explanation or sans consideration. That is not the case here because the exculpatory contract in suit clearly amounts to more than a posted notice.
[**9]
9 Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (1994); Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 145 (Vt. 1988); Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, 919 (1988); Rawlings v. Layne & Bowler Pump Company, 93 Idaho 496, 465 P.2d 107, 110 (1970); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 233 N.E.2d 22, 24 (Mass. 1968); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 926, 220 N.Y.S.2d 962 (1961).
10 Gulf C&S Ry. Co. v. Anderson, 120 Okla. 60, 250 P. 500, 502 (1926).
11 Colgan, supra note 9 at 145; Jones v. Dressel, 623 P.2d 370, 378 (Colo. 1981); Anderson, supra note 10 at 502.
12 Anderson, supra note 10 at 502.
13 Salt River Project Agr. v. Westinghouse Elec., 143 Ariz. 368, 694 P.2d 198, 213 (1985); Elsken, supra note 7 at 1010-1111.
14 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984). See also Thomas, supra note 8 at 168 n. 7; Fisk v. Bullard, 205 Okla. 502, 239 P.2d 424, 427 (1951); Anderson, supra note 10 at 502. See also in this connection Harris, supra note 9 at 909; Salt River, supra note 13 at 213; Belger Cartage Serv., Inc., v. Holland Const. Co., 224 Kan. 320, 582 P.2d 1111, 1119 (1978); Ciofalo, supra note 9 at 926. 15
[**10] [HN10]
The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. 15
15 Wolf supra note 9 at 528; Jones, supra note 11 at 376; Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944).
A. Clear and Unambiguous Description of Parties and Damages
[HN11] A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall [**11] fairly within the contemplation of, the parties. 16 The clause must also identify the type and extent of damages covered — including those to occur in futuro. 17
16 Anderson, supra note 10 at 502.
17 Anderson, supra note 10 at 502.
B. Bargaining Power’s Parity Level
[HN12] Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services. 18
18 Goldberg, supra note 15 at 174-175. See Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113, 1117 (W.D. Okla. 1976).
[**12] [*875] C. The Element Whose Presence Makes the Exculpation Not Violative of Public Policy 19
19 [HN13] In the context of an exculpatory clause’s validity, “public policy” means that which inhibits anything injurious to the good of all. The term is applied here in a sense broader than that used when scrutinizing for conformity to “public policy” wrongful-termination claims pressed by discharged at-will employees. Cameron & Henderson v. Franks, 199 Okla. 143, 184 P.2d 965, 972 (1947). For cases that deal with claims by discharged at-will employees see Groce v. Foster, Okl., 880 P.2d 902, 904 (1994); Gilmore v. Enogex, Inc., Okl., 878 P.2d 360, 364 (1994); Burk v. K-Mart Corp., Okl., 770 P.2d 24, 28-29 (1989).
[HN14]
While courts may declare void those portions of private contracts which contradict public policy, 20 they must do so only with great caution. 21 Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public [**13] morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property. 22
20 Hargrave v. Canadian Valley Elec. Co-op., Okl., 792 P.2d 50, 59 (1990).
21 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-818 (1941).
22 Shepard, supra note 21 at 251; Anderson v. Reed, 133 Okla. 23, 270 P. 854, 856 (1928). An example of an exculpatory clause injurious to public health is afforded by an agreement exonerating a common carrier from liability for negligence. See Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990, 996-997 (1920).
IV
SUMMARY
[HN15] National jurisprudence teaches that parties may contractually allocate the risk of future harm. The exercise of this power is conditional; any agreement having as its purpose [**14] the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved. The parties must have bargained for their exchange on a level playing field — the level to be measured by the seriousness of the contract’s subject matter and the options available to the person giving up the right to sue. If the clause is to pass the test’s muster, the assumed obligation cannot be deemed to have brought about a result perceived as harmful to the principles of “public policy”. 23
23 See supra note 19.
The validity of the Schmidt/Stables exculpatory clause in suit depends on the outcome of the fact-finding investigation to be conducted in the certifying court. 24 If — under the test we announce today — that court should determine that any single requirement for the clause’s enforceability has not been met, its decision could not uphold the contract and exonerate the United [**15] States.
24 Promise-based obligations of the type dealt with here are treated as the promisor’s risk assumption. See supra Part III. [HN16] The terms of ART. 23, § 6, OKL.CONST., provide in pertinent part:
“The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” [Emphasis added.]
[HN17] The terms of ART. 23, § 8, OKL.CONST., provide:
Any provision of a contract, express or implied, made by any person, by which any of the benefits of this constitution is sought to be waived, shall be null and void.” [Emphasis added.]
Today we merely define the parameters of an exculpating clause’s enforceability. Whether, as applied to this case, the provision presents a disputed law question or also a disputed fact question is to be decided by the certifying court.
CERTIFIED QUESTIONS ANSWERED.
KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur;
WILSON, [**16] C.J., concurs in part and dissents in part.
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RELEASE (Waiver) CHECKLIST
Posted: May 1, 2013 Filed under: Assumption of the Risk, Release (pre-injury contract not to sue) | Tags: Assumption of risk, Checklist, Contract, Covenant not to sue, Document Management, Exculpatory Agreement, Exculpatory clause, Insurance, Law, Practice Management, Products, Release, Waiver Leave a commentWhat do I look for when evaluating releases or writing one?
If you are getting ready for your summer recreation business it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.
Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical and they may all be modified based on your activity, program, employees, and ability to undertake the risks.
I’ve divided this checklist into three major parts:
· Required for your Release to be Valid: What is absolutely required
· Needed: What you should have for your release to be valid in most states
· What Your Release Cannot Have: What you should never have in your document
There are some subsections also that are fairly self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.
Required for your Release to be Valid
Contract: The legal requirements for a contract are met if the release is signed
Updated Recently: Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release?
Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document?
Parties: You have to identify who is to be protected by the release and who the release applies too.
Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against.
Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk
Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence?
Plain Language: Is the release written so that it can be understood? Is it written in plain English?
Venue: Does your release have a Venue Clause?
Jurisdiction: Does your release have a Jurisdiction Clause?
Signatures: Does your release have a place for the signor to date and sign the release
Nothing in your marketing program invalidates your release.
Information to complete the continuing duty to inform
Items that may be Needed Dependent upon the Purpose of the Release
Parental Release
Product Liability Language
Release of Confidential Medical Information
Signor has viewed the Website
Signor has viewed the Videos
Signor has read the information
Signor has conveyed the necessary information to minor child
Reference to required Statute
Demo Language
Needed
Notice of Legal Document:
Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?
Opening/Introduction: Does your release have an opening or introduction explaining its purpose
Assumption of Risk Language
Minor Injuries Noticed
Major Injuries Noticed
Death
Mental Trauma
Risks Not Associated with Activity
List Not Exclusive/ Exhaustive
Alternative Resolution
Arbitration
Mediation
Indemnification
Third party costs
First party costs
Severance Clause
How Release is to be interpreted
Breach of Covenant of Good Faith
Permission to release medical information
Waiver of medical confidentiality
Waiver of HIV status
Statement as to Insurance
Incidental issues covered
Plain Language: Readability Level ________
Adequate Typeface: Typeface Size _________
Release language in Plain English
Agreement that the document has been read
Agreement that the signor agrees to the terms
What Your Release Cannot Have
Places to Initial
Small Print
No heading or indication of the legal nature
No indication or notice of the rights the signor is giving up
Release Hidden within another document
Important sections with no heading or not bolded
Multiple pages that are not associated with each other
Miscellaneous Clauses your Release may Need
Electronic Signature Clause
Rental Agreement Clause
Demo Language
Understand use of Equipment
Accept Equipment As Is
Agree to ask questions about Equipment
Understand Demo Equipment has more Risk
Rental Language
More articles about releases.
Release/Waivers: The basics, the very basics! http://rec-law.us/AaqwqH
Releases 101 http://rec-law.us/xGL0I3
States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan
States that do not Support the Use of a Release http://rec-law.us/zHGQsZ
What is a Release? http://rec-law.us/xMECTc
I found a release on the internet. It will work right! http://rec-law.us/14w6qeh
If you are interested in a Professional Review of your Release please let me know.
What do you think? Leave a comment.
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In Nebraska a release can defeat claims for gross negligence for health club injury
Posted: April 8, 2013 Filed under: Health Club, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Defendant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Plaintiff, Precor, Precor USA, Release, Treadmill Leave a commentPalmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
Manufacturer of the health club equipment was able to squeak out a win by making sure the equipment met the applicable standards when the treadmill was manufactured.
This case is a health club fitness which is interesting because it covers several legal issues in ways that most courts will not. It also points out some simple things you can do to keep yourself out of court or losing in court.
A husband and wife, plaintiffs, joined a health club. After five weeks at the club the wife, went to get on a treadmill. She did not notice it was running and upon stepping on the treadmill she was thrown backwards into an elliptical trainer. The plaintiff had an injured hand and chest from the accident.
The area around the treadmill was allegedly, not well lit, however the plaintiff had not complained about the lighting. When she stepped on the treadmill she looked at the control panel but did not look at the belt. The treadmill was in a row of treadmills and the treadmills on either side of the treadmill in question were running. The plaintiff also said the treadmill area was loud.
The plaintiff had been using treadmills for 21 years. She had been using treadmills at the defendants approximately five times a week for five weeks and had used the treadmill in question 10 to 15 times. When she joined the defendant health club she received instructions from a trainer, but she stated she did not need instructions on how to operate a treadmill. The plaintiff also had a treadmill at home.
When the plaintiff and her husband joined the defendant health club she signed two documents which contained releases. The first was titled Membership agreement what had a release that included the word negligence in the language of the contract. The second form was a health history questionnaire which was signed by the plaintiff and also included release language.
The plaintiff and her husband sued the manufacturer of the treadmill, Precor, and the health club, Lakeside Wellness Center for her injuries. She claimed both defendants were negligent and were grossly negligent. Precor was allegedly negligent in making a treadmill without proper safety features and the health club was liable for not providing adequate lighting around the treadmill. There was also a claim that the health club had modified the treadmill belt so that it was unsafe.
The trial court granted both of the defendant’s motions for summary judgment. The plaintiff appealed saying the trial court erred in:
(1) granting summary judgment in favor of Lakeside and Precor;
(2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and
(3) holding that Palmer assumed the risk of using the treadmill.
Summary of the case
The court first looked at the issue of the release. The court ignored the issues of whether the release worked against negligence and reviewed the issues of releases and claims of gross negligence. However before starting its analysis, it dismissed Precor’s argument that it was a third party beneficiary of the release.
A third party beneficiary of a contract is usually identified as someone who is not named in the agreement, but obvious to all parties that they are to receive benefits of the agreement. An example would be a contract between a health club and a supplier of fitness equipment. The third party beneficiaries of that agreement would be the membership of the health club. When the third party beneficiary is not obvious in the agreement then the third parties as usually not construed as beneficiaries and do not have an interest in the contract.
In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Here the court found that the agreement between a member and the health club did not identify the defendant manufacture by name or by any other identification. Because of that, the manufacturer could not be a third party beneficiary of the release.
Court then went back to the issue of the claim of gross negligence. Under Nebraska law gross negligence is defined as
Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
Under Nebraska law the court could rule on whether the allegations of the complaint give rise to gross negligence. Here the court found the allegations did not. Inadequate lighting and the installation of a new belt on the treadmill did not meet the level needed to prove gross negligence.
Precor, the making of the treadmill in its motion to the trial court presented an affidavit stating that at the time the treadmill was made the treadmill “met or exceeded the voluntary guidelines set by the American Society for Testing and Materials” The affidavit included photographs of the treadmill to show what handrails existed and the fact that treadmill came with a clip that could be attached to the user’s clothing. If the clip was pulled it would disconnect and stop the treadmill. The treadmill was also made 7 years prior to the accident.
The plaintiff hired an expert who stated that the treadmill “should” have various safety features that were not on the treadmill. The court took note that the plaintiff’s expert did not say the treadmill had to have, did not speak in absolutes with regard to the safety features. Because the plaintiff’s expert was hesitant or could not be explicit on what was missing the court held that Precor was not negligent.
A third defense was raised on appeal, assumption of the risk, by the defendants. Because the court had dismissed the claims raised by the plaintiff already, the court did not get into that defense.
So Now What?
Obviously the better your release the greater your chances of winning. However there are several other issues here that you should pay attention too.
The plaintiff claimed that her injury was due to the fact the new belt on the treadmill did not contain markings that would indicate the treadmill was moving. If you replace or repair something, make sure you use equipment that meets the manufactures specs when you bought the machine or better. If the manufacturer had markings on the treadmill belt that indicated that the belt was moving you need to install a replacement belt that has similar markings.
Moreover, if you have the opportunity, whether or not the original belt was marked, to install a belt with markings, why not.
The assumption of the risk defense was not discussed by the court in its analysis, but was definitely part of the facts. In this case the defense team was able to elicit a lot of treadmill experience from the plaintiff. Many times, after an accident, the plaintiff will change their story. Getting experience or history up front is always safer.
And why not!
Why not include in your release language that protects everyone you can from litigation. There was a claim by the husband that one of the people running on the treadmill next to the one at issue had left that treadmill on. In some states, that would be enough to bring that other gym member into the suit. Write your release to keep you out of a lawsuit, also write it to keep everyone associated with your or that you benefit from out of the lawsuit. Just because you might not be named as the negligent party, you can still be brought in by the person who is named as the defendant. Protect you, your employees, other guests, visitors, volunteers, sponsors, and manufacturers dependent on what you do.
How many new customers are going to sign up as members if the word gets out you allowed one of them to be sued for an accident to another member.
If you do hear of problems from your guests or members, you need to respond. One issue that would have made the outcome different in this case would be a stack of “accident forms” or complaints about the lighting. If the plaintiff could prove that the lighting was bad because other people had complained about it or blamed it for their injuries, then I believe this would have had a different outcome. Don’t collect paperwork, solve problems.
Plaintiff: April Palmer
Defendant: Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc.
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses: Release, Assumption of the Risk
Holding: for the defendants
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Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
Posted: April 8, 2013 Filed under: Assumption of the Risk, Health Club, Legal Case, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Appeal, Appellant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Precor, Release, Summary judgment, Treadmill, Waiver Leave a commentPalmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.
No. S-10-974.
281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
June 24, 2011, Filed
PRIOR HISTORY: [***1]
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.
DISPOSITION: AFFIRMED.
HEADNOTES
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.
4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.
5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.
David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.
Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.
JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.
OPINION BY: HEAVICAN
OPINION
[**847] [*781] Heavican, C.J.
INTRODUCTION
The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.
FACTUAL BACKGROUND
Palmer’s Accident.
Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.
This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.
Palmer’s Familiarity With Treadmills.
During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.
Palmer’s Membership Agreement and Health History Questionnaire.
At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:
WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.
The health history questionnaire signed by Palmer stated in relevant part as follows:
1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .
2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .
Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.
ASSIGNMENTS OF ERROR
Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.
STANDARD OF REVIEW
[1] [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. 1
1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
[2] [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. 2
2 Id.
ANALYSIS
Waiver and Release.
Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.
[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. 3 In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.
[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. 4
3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).
4 Id. at 686, 789 N.W.2d at 267.
A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.
Lakeside’s Gross Negligence or Willful and Wanton Conduct.
At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.
Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.
[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. 6 [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. 7 We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.
5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).
6 Id.
7 Id.
Precor’s Negligence.
We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.
In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.
In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.
In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.
In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that
based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.
Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.
Assumption of Risk.
Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.
CONCLUSION
The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.
AFFIRMED.
Wright and Miller-Lerman, JJ., not participating.
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Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Posted: April 1, 2013 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Legal Case, Release (pre-injury contract not to sue) | Tags: Deceptive Trade Practices, equestrian, Equine, Hawaii, HI, Horse, horseback riding, Release, Releases / Waivers, stable, Waiver Leave a commentTo Read an Analysis of this decision see
Hawaii Supreme Court agrees that finding out a release is required to be signed upon arrival at the activity and after the activity has been paid for may be a deceptive trade practice.
Hawaii’s deceptive trade practices act sends this case and release back to the trial court
Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.
NO. 25151
SUPREME COURT OF HAWAI’I
111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
July 10, 2006, Decided
SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)
PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.
COUNSEL: On the briefs:
Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.
Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.
JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.
OPINION BY: LEVINSON
OPINION
[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.
The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).
On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) 1 do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) 2 in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.
1 HRS ch. 480 provided in relevant part:
§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.
. . . .
§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .
. . . .
§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.
§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:
(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and
(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.
[***3]
2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:
§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:
“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .
. . . .
“Equine activity” means:
. . . .
(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and
. . . .
“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .
“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.
“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;
(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(3) Certain hazards such as surface and subsurface conditions;
(4) Collisions with other equines or objects; and
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.
(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:
. . . .
(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury
. . . . (Some brackets in original and some omitted.)
[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.
I. BACKGROUND
The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” 3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.
3 The rules and waiver stated in pertinent part:
In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.
RULES AND REGULATIONS
FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE
. . . .
. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO
. . . .
. DO NOT FOLLOW ONE ANOTHER
. . . .
WAIVER
I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.
I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.
(Emphasis in original.)
[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:
Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .
[*259] [**432] [Lisa]: When I felt that the horse[] was getting too close to the horses above me.
Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?
[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.
Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?
[Lisa]: Yes.
Q: You recall which hind leg of the horse kicked you? Was it the right or the left?
[Lisa]: It would be the right one.
Q: And that was a horse which was ridden by the guide or the guest?
[Lisa]: The guide.
Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?
[Lisa]: Just before?
Q: Yes.
[Lisa]: Yes.
Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?
[Lisa]: No.
Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?
[Lisa]: Yes.
Nakoa described the same incident in a January 9, 2002 deposition:
[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.
. . . .
Q: On which side of your horse was he at the time?
[Nakoa]: He was on the left side of me.
Q: And were you still moving or were you stopped?
[Nakoa]: We were walking.
. . . .
Q: . . .[H]ad you passed Lisa along the way? . . . .
[Nakoa]: Because of the angle, she was off to my left.
Q: Still in front of you?
[Nakoa]: No. About the same.
. . . .
Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?
. . . .
[Nakoa]: She was still on the left side of me.
Q: . . . [A]bout how far away do you estimate she was from your horse?
[Nakoa]: You know, 30 feet maybe. . . .
Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?
[Nakoa]: Yes. The man was on my left and I was talking to him.
. . . .
Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?
[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.
Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.
The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.
On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.
The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.
The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. 4
4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).
[***11] II. STANDARDS OF REVIEW
A. Summary Judgment
We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .
[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
[Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).
Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).
B. Interpretation Of Statutes
[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).
Furthermore, our statutory construction is guided by established rules:
[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.
Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).
State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).
III. DISCUSSION
A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.
The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).
The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.
1. The elements of a deceptive trade practice claim for recision of a contract
[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.
[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.
[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” 5 in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” 6 Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” 7 which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. 8
5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”
6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).
[***19]
7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).
8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).
[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. 9
9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.
2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. 10 Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. 11 Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.
10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).
[***22]
11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.
[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.'” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.'” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.'” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.
Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.
B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice
If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.
Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.
1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.
If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.
HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.
2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.
a. The waiver was validly executed.
Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.
[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.'” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.'” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).
The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.
In Krohnert, the ICA defined the public interest
as involving some or all of the following characteristics:
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). 12 Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).
12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).
Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.
Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.'” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.
In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.
b. The scope of the Courbats’ waiver does not extend beyond negligence claims.
The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,'” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).
IV. CONCLUSION
In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.
DISSENT BY: DUFFY
DISSENT
DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS
I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.
G-YQ06K3L262
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Keep Writing Your Own Release
Posted: February 26, 2013 Filed under: Release (pre-injury contract not to sue) | Tags: AdventureTravel, Jim Moss, Recreation Law, Recreation-Law.com, Release, Risk Management, Waiver Leave a commentI make more money after you get sued over a bad release.
I watched an attorney tell another shopper in an office-supply store to go ahead and buy the will making software the shopper was holding. I was, to say the least, confused. After the shopper left I asked the attorney why he had said that.
The attorney’s answer was simple. I can get $500 for writing a will. If that guy write’s his own, I or some attorney will get $5000 or more to fix his mistakes once he dies.
Yup, Keep writing your own releases.
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New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident
Posted: February 4, 2013 Filed under: New Hampshire, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Bennington, Crotched Mountain Ski Area, Inc., New Hampshire, NH, Peak Resorts, Release, ski area, skiing, SNH Development, Snowmobile, Special Relationship, Waiver Leave a commentMcGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Language of the release was broad enough to cover those claims that were not clearly contemplated by the parties to the release.
The facts in this case are simple. The plaintiff was a season pass holder of Crotched Mountain Ski Area in Bennington, New Hampshire. Crotched Mountain Ski Area is owned by SNH Development, Inc., which is a subsidiary of Peak Resorts, Inc. While skiing at the resort one day an employee of the ski area drove a snowmobile into the plaintiff’s path causing a collision.
The plaintiff sued, and the defendants raised the defense of the release.
Summary of the case
The court reviewed the legal issues fairly extensively under New Hampshire law. Releases are upheld under New Hampshire law, as long as they:
(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.”
Under New Hampshire law, to violate public policy the release must be between parties with a special relationship or there was a disparity in bargaining power. A special relationship exists if the defendant “is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service...” The court found the ski area did not meet the definition to create a special relationship to the plaintiff.
There was no disparity of bargaining power because to have that situation, the services offered by the defendant must be a “matter of practical necessity.” A necessity is something needed to survive in this day and age, food, power, phone or utilities generally. Skiing is not necessary to survive; it is recreation.
The plaintiff also argued the release violated public policy because New Hampshire has a statute governing snowmobiles. Because the snow mobile was operating on private land, the court also rejected this argument.
The next claim was the release should not be upheld because it the plaintiff did not contemplate that the release would be used to bar a claim for an accident with a snowmobile. Under New Hampshire law the release does not have to name with any specificity, the possible claims that it will protect against. The release only has to adopt language that covers a broad range of accidents.
Thus, in order to release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of the release clearly and specifically indicate the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
From the quote from another New Hampshire case, Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994), it is obvious that in New Hampshire, you do not have to use the word negligence in a release. However, doing so creates more opportunities to test the release and the law.
The plaintiff argued that the release does not use the word snowmobile so a collision with a snowmobile falls outside of the release. However, a review of the release by the court found the language was broad enough to cover the facts in the case, a collision with a snowmobile.
This argument also created an argument that the release only covered the inherent risks of skiing. Inherent risks are those risks those are part and parcel of the risk. Inherent risks, unless changed by statute, do not cover any increases in the risk caused by man’s involvement. So a snowmobile is not an inherent risk of skiing.
However, the court found the release did not use the term inherent in it so the risks contemplated by the release were not limited to the inherent risks of the sport of skiing.
So Now What?
Like all cases involving a release, the release must be written carefully so not to be thrown out. This means someone who knows the law, knows the sport or activity you engage in and knows you must write the release.
Here, if the release had incorporated the word inherent, as many releases do, the release would have failed.
Plaintiff: Marcella McGrath f/k/a Marcella Widger
Defendant: SNH Development, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: Release bars the claims of the plaintiff
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McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Posted: February 4, 2013 Filed under: Legal Case, New Hampshire, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Bennington, Crotched Mountain, Crotched Mountain Ski Area, Inc., New Hampshire, New Hampshire Superior Court, New Hampshire Supreme Court, NH, Peak Resorts, Release, ski area, skiing, SNH Development, Snowmobile, Special Relationship, Summary judgment, Waiver 1 CommentMcGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Marcella McGrath f/k/a Marcella Widger v. SNH Development, Inc. and John Doe, an unnamed individual
No. 07-C-0111
SUPERIOR COURT OF NEW HAMPSHIRE, HILLSBOROUGH COUNTY
2008 N.H. Super. LEXIS 45
May 19, 2008, Decided
NOTICE:
THE ORDERS ON THIS SITE ARE TRIAL COURT ORDERS THAT ARE NOT BINDING ON OTHER TRIAL COURT JUSTICES OR MASTERS AND ARE SUBJECT TO APPELLATE REVIEW BY THE NEW HAMPSHIRE SUPREME COURT.
SUBSEQUENT HISTORY: Affirmed by McGrath v. SNH Dev., Inc., 158 N.H. 540, 969 A.2d 392, 2009 N.H. LEXIS 43 (2009)
CORE TERMS: skiing, ski area, personal injury, snowmobile, negligence claim, summary judgment, public policy, reasonable person, exculpatory, property damage, inherent hazard, public service, bargaining power, contemplate, import, common occurrence, relationship existed, citations omitted, hazardous, disparity, sport, exculpatory provision, exculpatory clause, public interest, privately owned, horseback riding, contemplation, collision, racing, voluntarily assume
JUDGES: [*1] GILLIAN L. ABRAMSON, PRESIDING JUSTICE.
OPINION BY: GILLIAN L. ABRAMSON
OPINION
ORDER
The plaintiff commenced the instant action alleging negligence against the defendants, SNH Development, Inc. (“SNH Development”) and John Doe, an unnamed individual. The defendants now move for summary judgment, and the plaintiff objects.
For purposes of the defendants’ motion for summary judgment, the parties do not appear to dispute the following facts. SNH Development is a subsidiary of Peak Resorts, Inc. and owns and operates the Crotched Mountain Ski Area in Bennington, New Hampshire. On October 23, 2003, the plaintiff signed an application (the “application”) for a season pass to the Crotched Mountain Ski Area. The application provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the ski area facility, that I freely accept and voluntarily assume all risks of personal injury or death of property damage, release Crotched Mountain its owners and its agents, employees, directors, officers and shareholders from any and all liability for personal injury or property damage [*2] which results in any way from negligence, conditions on or about the premises, the operations of the ski area including, but not limited to, grooming snow making, ski lift operations, actions or omissions of employees or age the area, or my participation in skiing, accepting myself the full responsibility
Defs.’ Mot. for Summ. J., Ex. B. Moreover, on December 20, 2003, the plaintiff signed a Liability Release Agreement, which provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the area facility, that I freely accept and voluntarily assume all risks of personal injury or death or property damage, and release Peak Resorts, Inc, all of its subsidiaries, and its agents, employees, directors, officers, shareholders and the manufacturers and distributors of this equipment and the school and group organizers (collective “providers’), from any and all liability for personal injury, death or property damage which results in any way from negligence, conditions on or about the premises, the operation of the area including, but not limited to grooming, [*3] snowmaking, lift operations, actions or omissions of employees or agents of the areas, or my participating in skiing, snowboarding, blading, accepting myself the full responsibility.
Id. On February 20, 2004, the plaintiff was skiing 1 a trail at the Crotched Mountain Ski Area when an employee of SNH Development drove a snowmobile into the plaintiff’s path, causing a collision.
1 Some of the pleadings state that the plaintiff was skiing, while other’s state that the plaintiff was snowboarding.
The defendants now move for summary judgment, arguing that the plaintiff signed the application and the Liability Release Agreement, both of which are valid, enforceable exculpatory contracts. The plaintiff objects, arguing that the application and the Liability Release Agreement violate public policy and that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim.
In ruling on a motion for summary judgment, the Court “consider[s] the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” White v. Asplundh Tree Expert Co., 151 N.H. 544, 547, 864 A.2d 1101 (2004). [*4] The Court must grant a motion for summary judgment if its “review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law Id. A fact is material “if it affects the outcome of the litigation under the applicable substantive law.” Palmer v. Nan King Restaurant, 147 N.H. 681, 683, 798 A.2d 583 (2002).
New Hampshire law generally prohibits exculpatory contracts, but the Court will enforce them if; “(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.” Dean v. MacDonald, 147 N.H. 263, 266-267, 786 A.2d 834 (2001). Thus, the Court considers each of these requirements in turn.
Regarding the first requirement, an exculpatory contract violates public policy if a special relationship existed between the parties or if there was some other disparity in bargaining power. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986) (“A defendant seeking to avoid liability must show that the exculpatory agreement does [*5] not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”).
A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way, RSA 215-C:49, XII (Supp. 2007), and because the Crotched Mountain Ski Area serves the public. Assuming that RSA 215-C:49, XII applies to the operation of a snowmobile on a privately owned ski area, the plaintiff has not offered any legal support for the conclusion that this statute somehow charges the defendants with a duty of public service. Moreover, the fact that the Crotched Mountain Ski Area serves the public is not conclusive. For example, Barnes, involved a negligence claim arising from a collision at an enduro kart racing facility. In Barnes, the New Hampshire Supreme Court noted that the defendant’s served the public but held that the defendant’s were not charged with a duty of public service because [*6] Endurokart racing is not “affected with a public interest.” Barnes, 128 N.H. at 108. Similarly, skiing is a recreational activity not affected with a public interest, and the Court finds that the defendant’s are not charged with a duty of public service.
The Plaintiff also contends that she was at an obvious disadvantage in bargaining power because all ski areas require skiers to sign releases. The Court disagrees.
This case … does not have any hallmarks of a disparity in bargaining power. The [skiing] service offered by the defendant is not a “matter of practical necessity.” Nor did the defendant in this ease have monopoly control over this service such that the plaintiff could not have gone elsewhere.
Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994) (quoting Barnes, 128 N.H. at 108). 2
2 The Plaintiff also argues that the application and the Liability Release Agreement violate public policy because they relieve the defendant’s from compliance with RSA chapter 215-C, which governs snowmobiles. Assuming that RSA chapter 215-C applies to the operation of a snowmobile on privately owned ski area, the application and the Liability Release Agreement would have no bearing on the enforcement of RSA chapter 215-C. [*7] See RSA 215-C-32 (Supp.2007) (providing for the enforcement of RSA chapter 215-C).
“Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that reasonable person in his position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107. “The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.” Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 169, 663 A.2d 1340 (1995). The Court
therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”
Id. (citations omitted) (quoting Barnes, 128 N.H. at 107). The Court “will assess the clarity. the contract by evaluating it as a whole, not by examining [*8] isolated words and phrases. Id. at 169-170.
The plaintiff does not appear to dispute that she understood the import of the application or the Liability Release Agreement. Rather, the plaintiff argues that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim. Thus, the Court turns to the third requirement.
“[T]he plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement. The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries. They may adopt language to cover, a broad range of accidents….” Barnes, 128 N.H. at 107 (citation omitted). To determine the scope of a release, the Court examines its language, strictly construing it against the defendant. Dean, 147 N.H. at 267.
Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of [*9] the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
Audley, 138 N.H. at 418 (citations omitted) (quoting Barnes, 128 N.H. at 107).
The plaintiff contends that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because neither the application nor the Liability Release Agreement reference snowmobiles. As rioted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.” Defs.’ Mot. for Summ. J., Ex. B. This language clearly states that the defendants are not responsible for the consequences of their negligence.
The Plaintiff also contends that the parties did [*10] not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because snowmobiles are not an inherent hazard of skiing. The plaintiff relies on Wright. In Wright, the New Hampshire Supreme Court noted:
The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that
Wright, 140 N.H. at 170. Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the [*11] Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.
Based on the foregoing, the defendant’s motion for summary judgment is GRANTED.
So ORDERED.
Pennsylvania case reviews the requirements for a valid release in ski accident claim.
Posted: January 14, 2013 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, assumption of the risk, Inc., Liberty Mountain Resort, Pennsylvania, Pennsylvania Supreme Court, Release, Season Pass, Ski, Ski Liberty, Ski Liberty Operating Corp, Snow Time Leave a commentCahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
Release barred claims for injuries from falling on icy slopes
The plaintiff was a season pass holder at the defendant’s resort and an expert skier. While skiing one day he fell on an icy spot created when a snowmaking hydrant malfunctioned and spread water around the area which froze.
Ski Liberty requires season pass holders to sign a release. To get a season pass, skiers first sign up on-line. The online sign up required the plaintiff to click through an acknowledgement of the terms of the season pass which included the release.
A skier then had to sign a written release at the time the season pass was picked up or at the resort. The court specifically set forth the following issues it found important in determining the validity of the release. The release stated the parties intended to be legally bound. That information was conspicuous location above the signature line.
The plaintiff sued because “Ski Liberty was negligent for failing to maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.” The plaintiff’s injuries were to his face, back, ribs and left hand. The plaintiff’s wife sued for loss of consortium.
What I found interesting was the plaintiff claimed that he did not know there was ice on the slope. I’ve skied through the east and a lot in Pennsylvania. The slopes are all ice, finding snow is the rare occasion.
Summary of the case
The decision starts with the court quoting the Pennsylvania Supreme Court requirements for a valid release.
The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.
The court then found the requirements were met by the release at issue. The plaintiff was not forced to enter the contract but did so voluntarily. There was no evidence of coercion or inducement. The activity, skiing, is recreational and not essential to the plaintiff’s personal or economic well-being. The release does not contravene public policy because the issues were private in nature and did not affect the rights of the public.
The court then reviewed the Pennsylvania ski statute and found the statute pointed out that skiing had risks. The court also found the statute suggested it was the policy of the state of Pennsylvania to enforce the doctrine of assumption of risk who engages in skiing.
The language of the release spelled out with particularity the intent of the parties. The captions clearly advise the signor of the content and purpose of the release and worked as a notice of the risk as well as a release of liability. The release then in bold letters released the defendant of any liability.
The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.
The court then looked at the plaintiff’s argument that a hazardous condition created by the defendant and known by the defendant is not an inherent risk to the sport of skiing. If the risk was not inherent, then the plaintiff argued the release was void and assumption of risk did not apply.
The court did not agree and dismissed the plaintiff’s argument with a great statement.
His [plaintiff’s] experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man-made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport.
So Now What?
The decision outlines quite plainly. What is needed to write a release in Pennsylvania. More importantly it points out several points that courts look for to determine if the defendant as acting in a way as to not hide the release and to make sure the defendant truly understood what they were signing.
Those items include:
· Conspicuous notice of the legal purpose of the document
· Plenty of time to review the release before signing
· Captions that point out the legal ramifications rather than hiding them
· Important language in the release in bold print
· A release written in plain English that is understandable by the signor
· A section that explains the possible risks of the activity
· References in the document to outside sources to assist the signor in understanding the document
Courts hate to uphold releases where there is nothing but the pure letter of the contract to rely upon. If the release clearly informed the signor of the risks and the signor had to have known they were signing a release, then the court can easily decide for the defendant.
Plaintiffs: Timothy Joseph Cahill and Anne Leslie Cahill
Defendants: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.,
Plaintiff Claims: Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.
Defendant Defenses: Release and Assumption of the Risk
Holding: Release was valid and barred the claims of the plaintiffs
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and 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 manufacturers, 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.
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. To find out the purpose of this website go here.
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Plaintiff raised argument in work/team building situation that they were forced to sign release
Posted: December 3, 2012 Filed under: Challenge or Ropes Course, Idaho | Tags: Climbing Wall, Coercion, Employee, Employment, Idaho, Idaho Supreme Court, Northwest Nazarene University, Release, Team Building 3 CommentsMorrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82
Argument that plaintiff was forced to sign a release by an employer did not prevail, but it was taken seriously by the court.
I’ve worried and written on the issue that when a “team-building” exercise is undertaken by an employer how the issue of a release should be handled. If the
employer uses an employer or rope’s course or climbing wall release is this going to give the employee the argument that they were coerced into the act? Where does worker’s compensation arise in employers “required” team building activity? What if the release the employee signs, is one required by the employer?
A defense to a contract is coercion. You cannot be held to a contract if you were forced to enter into the contract.
In this case, the employer contracted with the defendant university to run a team-building exercise. The team-building exercise included using a climbing wall. Prior to the activity, the employer gave the employee a release prepared by the defendant to sign. The release relieved the defendant university of any liability for negligence.
While climbing the belayer, a coworker failed, and the plaintiff was injured. The plaintiff sued the university for failing to train and supervise the belayer. The university moved for summary judgment based upon the release signed by the employee.
Summary of the case
The Idaho Supreme Court first looked at the basis for release law in Idaho. In Idaho, releases are upheld unless one party owes the other party a public duty created by statute or there is an obvious disadvantage in the bargaining power between the parties. The bargaining power must be so unequal that “the party injured has little choice, as a practical matter, but to use the services offered by the party seeking exemption.”
The plaintiff argued the release was void because of the disadvantage of bargaining power between the employee and the employer. The plaintiff argued that:
· all employees were expected to sign the release
· he was not given an option not to sign the release
However, the court pointed out that at no time did the plaintiff say, “that he did not want to climb the climbing wall and that his employer ordered him to do so anyway.”
The release had a statement in it that said:
The undersigned has read and voluntarily signs this release and waiver of liability and indemnity agreement. The undersigned further agrees that no oral representations, statements or inducements apart from the foregoing agreement have been made.”
Between the facts, the plaintiff did not object to signing the release, the team-building exercise or climbing on the wall along with the statement in the release that
he had not been coerced his defense failed.
The plaintiff also argued that the release was overly broad and should not be upheld. In Idaho, the court set forth the requirements on how contracts and releases would be interpreted. “Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant who caused the harm at issue.” However, the language need not “list the specific, allegedly negligent conduct at issue.” In Idaho, that language must be broad enough to cover future negligence.
The parties to a release need not have contemplated the precise occurrence that caused the plaintiff’s injuries but rather may adopt language to cover a broad range of accidents by specifying injuries involving negligence upon the part of the defendant.
In Idaho, the language must not cover every possible accident but have language that allows the plaintiff to understand the board range of possible accidents. As I say, the life-changing ones should be listed as well as the everyday ones. On a frequency and severity scale, you want the ones with high severity and the ones with high frequency listed on your release.
The court upheld the release as a bar to the plaintiff’s claims. However, it was apparent in the decision that the court took seriously both claims raised by the plaintiff.
There was a dissent about the language of the release which would have ruled for the plaintiff on the issue of the language being broad enough to cover the injuries claimed by the plaintiff.
So Now What?
There are many states where I believe this case would not have survived. In this case if the plaintiff would have asked what happens if I don’t sign or said I don’t want to participate; the release would not have worked.
If you are running team building exercises this places you in an ethical as well as a legal conundrum. How do you protect yourself when the people coming to you
First make sure everyone knows they have an out that they can say public or privately that if they don’t want to do something, they don’t have too. That may defeat the purpose of the team-building exercise in your or the employer’s mind but the long-term costs of litigation over the issue should exceed that issue.
This also places you, the business to take a position, which is against your client. However, I believe you have to protect the participant who does not want to participate from your client. This is a dangerous conflict of interest.
Two, decide advance who will take care of the issue of what to do if someone is sued. It might be easier to have the employer indemnify you for any injuries of employees.
Employees should probably be covered under a worker’s comp policy in situations like this so you might always be subject to a subrogation claim for an injury. Releases stop subrogation claims, and indemnification does not. However, if the worker’s compensation carrier realizes they will be suing their insured because of an indemnification policy it might make a difference.
Three, work everything out in advance. Getting the release to the employer in advance of the activity was great. However, there was still a gap in what to do if someone is injured. Obviously, the employer and the university really never contemplated that someone would get injured, other than their insurance company and legal counsel telling them they must use a release. However, people get hurt all the time; bathrooms can only be avoided for so long. If you and the employer understand who insurance is going to step up and what defenses are available to both parties in advance it might eliminate some suits.
What do you think? Leave a comment.
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