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

Posted: August 1, 2022 | Author: Recreation Law | Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area, Skier v. Skier | Tags: equipment rental, Indemnification, Indemnification Clause, Mountain Creek Ski Resort, New Jersey, Release, Rental, Ski Rental, Skier v. Skier Collision, Waiver | Leave a comment

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

and MICHAEL LAVIN, Defendant-Respondent.

No. A-1367-20

Superior Court of New Jersey, Appellate Division

April 13, 2022

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

Argued April 4, 2022

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

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

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

Before Judges Fasciale and Sumners.

PER CURIAM

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

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

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

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

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

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

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

Mountain Creek raises the following arguments on appeal:

POINT I

STANDARD OF REVIEW-DE NOVO[.]

POINT II

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

POINT III

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

A. Special Status Of A Ski Operator.

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

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

POINT IV

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

POINT V

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

POINT VI

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

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

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

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

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

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

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

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

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

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

One provision of the Rental Agreement states:

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

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

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

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

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

II.

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

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

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

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

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

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

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

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

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

Affirmed.

———

Notes:

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

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

———

Stand Up Paddleboard case. Rental company not liable for death of renter who could not swim.

Posted: October 14, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Paddlesports, Release (pre-injury contract not to sue) | Tags: Admiralty Law, drowning, Leash, PFD, Release, Rental, Stand Up Paddleboard, SUP, Waiver | Leave a comment

Release and assumption of the risk both used to defeat plaintiff’s claims.

Citation: Kabogoza v. Blue Water Boating, Inc., et al

State: California, United States District Court, E.D. California

Plaintiff: Mary Bacia Kabogoza, on behalf of herself and the Estate of Davies Khallit Kabogoza

Defendant: Blue Water Boating, Inc., Skip Abed and ten “Roe” defendants

Plaintiff Claims: wrongful death, negligence and gross negligence

Defendant Defenses: Assumption of the Risk and Release

Holding: For the Defendant

Year: 2019

Summary

Renter of a stand-up paddleboard drowned after falling off his board. He did not use the free leash and wore his inflatable PFD incorrectly so it did not work.

Court found the plaintiff assumed the risk and had signed a release preventing his survivors from suing.

Facts

In April 2017, Davies Kabogoza and his friend, Laura Tandy, rented stand-up paddleboards from Defendant Blue Water Boating. Kabogoza had rented paddleboards from this rental company before. He was familiar with the staff, but had never told them that he could not swim.

Kabogoza and Tandy signed a rental agreement before taking out the paddleboards. The one-page agreement included several general and SUP-specific safety rules, along with a release of liability. Upon signing the agreement, the rental company-per Kabogoza’s request-gave him and Tandy intermediate-level paddleboards and belt-pack flotation devices. Regular life vests were also available, but Defendants allow their customers to choose between the two options. Belt-pack flotation devices are “very popular” among paddle boarders, but customers often wear them incorrectly, with the flotation portion of the device facing backwards. Id. Plaintiff alleges that Kabogoza was wearing his incorrectly at the time of the accident.

Defendants also gave its customers the option of using a paddleboard leash. Defendant Skip Abed, the owner of Blue Water Boating, told an investigator that 9 out of 10 times, customers do not want a leash. Neither Kabogoza nor Tandy used a leash while paddleboarding.

Shortly after Kabogoza and Tandy began using their paddleboards in the Santa Barbara Harbor, the wind increased, and the water became choppy. Tandy was in front of Kabogoza when she heard a splash behind her. When she turned around, she saw that Kabogoza had fallen off his board, and was struggling to keep his head above water. Tandy was unable to reach Kabogoza and prevent him from drowning. A dive team later found his body at the bottom of the ocean in about 30 feet of water. Id. When the divers found him, Kabogoza’s flotation device was attached to his waist, but in the backwards position. An inspection revealed that the device was in “good working order.”

The defendants filed a motion to dismiss, which was granted by the district court.

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

The court first looked at the gross negligence claim of the plaintiffs. Under California law, gross negligence is defined as “the want of even scant care or an extreme departure from the ordinary standard of conduct.” The court then went on to reiterate the California Supreme Court issue of disposing of gross negligence claims that do not meet the definition.

The court then looked at the defense of assumption of the risk. The plaintiff’s plead admiralty and state law claims in this lawsuit. Each has different types of claims and different defenses and defenses to state law claims do not work in admiralty cases and vice versa. The court waded through the differences in each of the defenses presented by the defendant.

Assumption of the risk is not a defense to an admiralty law claim. Assumption of the risk is a defense to state law claims. The court then went back to the gross negligence claim and found the facts plead by the plaintiff did not rise to the level of gross negligence.

The next claim of the plaintiff’s was a wrongful-death claim. A wrongful-death claim is a claim of the survivors of the deceased. However, any defense to a claim by the deceased is a bar to a wrongful-death claim.

Because the rental agreement signed by the deceased included release language, it was a bar to the wrongful-death claim of the deceased survivors.

So Now What?

First, this is a stand up paddleboard rental; however, the court did not treat it any differently then the rental of any other boat.

Knowledge that renters might wear they PFD incorrectly is disconcerting. I would counsel clients to at least post a sign or something showing people the proper way to wear their PFD’s.

I also think a leash would be required to make sure the boards come back. Fall off your board and the currents will send it away faster than you can swim and the rental company has lost another SUP.

However, tragic accident, legally the result was correct I believe.

What do you think? Leave a comment.

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

Kabogoza v. Blue Water Boating, Inc., et al.,

Posted: October 9, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Legal Case, Paddlesports, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Gross negligence, Leash, Negligence, PFD, Release, Rental, Stand Up Paddleboard, SUP, Surivors, Wrongful Death | Leave a comment

Kabogoza v. Blue Water Boating, Inc., et al.,

Mary Bacia Kabogoza, on behalf of herself and the Estate of Davies Khallit Kabogoza, Plaintiff,

Blue Water Boating, Inc., et al., Defendants.

No. 2:18-cv-02722-JAM-KJN

United States District Court, E.D. California

April 5, 2019

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DECLARING PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT MOOT

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE.

On October 9, 2018, Mary Kabogoza (“Plaintiff”) filed a complaint against Blue Water Boating, Inc., Skip Abed, and ten “Roe” defendants (“Defendants”). Compl., ECF No. 1. Plaintiff brought a wrongful death claim on her own behalf, and a survival action for negligence on behalf of her deceased husband, Davies Kabogoza. Compl. ¶¶ 8-17. She amended the complaint a month later to replace the negligence claim with a claim for gross negligence. See First Am. Compl. (“FAC”) ¶ 22-29, ECF No. 4. Plaintiff properly invokes the Court’s diversity jurisdiction and admiralty jurisdiction. FAC ¶ 1 (citing 28 U.S.C. §§ 1332, 1333).[1]

Defendants filed a motion to dismiss both of Plaintiff’s claims. Mot. to Dismiss (“Mot.”), ECF No. 6. Plaintiff opposed Defendants’ motion, and filed a Motion for Partial Summary Judgment. Opp’n to Mot. to Dismiss and Cross-Mot. for Partial Summ. J. (“Cross-Mot.”), ECF No. 8. Defendants opposed Plaintiff’s motion. Opp’n to Cross-Mot. and Reply (“Opp’n”), ECF No. 9. Plaintiff, however, never filed a reply to Defendants’ opposition.

For the reasons discussed below, the Court grants in part and denies in part Defendants’ Motion to Dismiss. The Court denies Plaintiff’s Motion for Summary Judgment.

I. FACTUAL ALLEGATIONS

In April 2017, Davies Kabogoza and his friend, Laura Tandy, rented stand-up paddleboards from Defendant Blue Water Boating. FAC ¶ 6. Kabogoza had rented paddleboards from this rental company before. FAC ¶ 7. He was familiar with the staff, but had never told them that he could not swim. FAC ¶ 14.

Kabogoza and Tandy signed a rental agreement before taking out the paddleboards. FAC ¶ 18. The one-page agreement included several general and SUP-specific safety rules, along with a release of liability. FAC, Ex. A. Upon signing the agreement, the rental company-per Kabogoza’s request-gave him and Tandy intermediate-level paddleboards and belt-pack flotation devices. FAC ¶¶ 7, 10, 15. Regular life vests were also available, but Defendants allow their customers to choose between the two options. FAC ¶ 14. Belt-pack flotation devices are “very popular” among paddle boarders, but customers often wear them incorrectly, with the flotation portion of the device facing backwards. Id. Plaintiff alleges that Kabogoza was wearing his incorrectly at the time of the accident. FAC. ¶ 13.

Defendants also gave its customers the option of using a paddleboard leash. FAC ¶ 16. Defendant Skip Abed, the owner of Blue Water Boating, told an investigator that 9 out of 10 times, customers do not want a leash. Id. Neither Kabogoza nor Tandy used a leash while paddleboarding. FAC ¶ 19.

Shortly after Kabogoza and Tandy began using their paddleboards in the Santa Barbara Harbor, the wind increased, and the water became choppy. FAC ¶ 9. Tandy was in front of Kabogoza when she heard a splash behind her. Id. When she turned around, she saw that Kabogoza had fallen off his board, and was struggling to keep his head above water. Id. Tandy was unable to reach Kabogoza and prevent him from drowning. Id. A dive team later found his body at the bottom of the ocean in about 30 feet of water. Id. When the divers found him, Kabogoza’s flotation device was attached to his waist, but in the backwards position. FAC ¶ 12. An inspection revealed that the device was in “good working order.” Id.

II. OPINION

A. Defendants’ Motion to Dismiss

1. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” A court will dismiss a suit if the plaintiff fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss, the Court “must accept as true all of the allegations contained in a complaint.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Id. A court may consider documents whose contents are alleged in or attached to the complaint if no party questions the documents’ authenticity. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

2. Analysis

a. Choice of Law

Plaintiff’s claims arise out of this Court’s admiralty jurisdiction as well as its diversity jurisdiction. A claim arising in admiralty is governed by federal admiralty law. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996). Ordinarily, a court may not supplement maritime law with state law when the state’s law “will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law.” Id. at 207 (quoting Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921)). However, admiralty law does not provide a cause of action for wrongful death or survival suits independent of the remedies provided by state law. Id. at 206. Thus, in admiralty, “state statutes provide the standard of liability as well as the remedial regime” for wrongful death and survival actions. Id. To the extent that Plaintiff’s claims arise under the Court’s admiralty jurisdiction, California law applies.

When a claim arises out of the court’s diversity jurisdiction, the court applies the substantive law of the forum state. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). But if the dispute is covered by a valid choice-of-law clause, the laws of the contractually-designated state applies. PAE Government Services, Inc. v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007). Here, the law of the forum and the law designated by the rental agreement’s choice-of-law clause are the same. See FAC, Ex. A. California law applies to the claims arising out of this Court’s diversity jurisdiction.

b. Gross Negligence

Plaintiff has not stated a claim for gross negligence. Gross negligence is defined as “the want of even scant care or an extreme departure from the ordinary standard of conduct.” Id. (quoting Kearl v. Board of Med. Quality Assurance, Cal.App.3d 1040, 1052-53 (1986). The California Supreme Court has emphasized “the importance of maintaining a distinction between ordinary and gross negligence, ” and disposing of cases on that bases “in appropriate circumstances.” City of Santa Barbara, 41 Cal.4th at 766.

Defendants first argue that Plaintiff’s claim should be dismissed because it is barred by the assumption-of-risk doctrine. Mot. at 9-11. The Court disagrees. To the extent that the claim is arising out of the Court’s admiralty jurisdiction, maritime tort law does not adopt California’s approach to this doctrine. Barber v. Marina Sailing, Inc., 36 Cal.App.4th 558, 568-69 (1995). Assumption of risk, be it express or implied, may not serve as a bar to claims that arise under admiralty law. Id. at 568 (“Numerous federal cases have held in a variety of contexts that assumption of [] risk is not permitted as an affirmative defense in admiralty law.”). While true that California law governs the standard of liability and the remedial regime for survival actions, Defendants do not identify any cases to suggest that Yamaha likewise intended state law to modify the defenses available in admiralty. To the extent that Plaintiff’s gross negligence claim arises under the Court’s admiralty jurisdiction, assumption of risk does not bar the action.

Assumption of risk likewise does not preclude Plaintiff’s gross negligence claim arising under the Court’s diversity jurisdiction. Although California law recognizes assumption of risk as a bar to recovery under some circumstances, it does not allow a party to release itself from liability for gross negligence. City of Santa Barbara v. Super. Ct., 41 Cal.4th 747, 779 (2007). To the extent that Plaintiff’s gross negligence claim arises under the Court’s diversity jurisdiction, assumption of risk, again, does not bar the action. For the same reason, the exculpatory clause in Defendants’ rental agreement does not bar Plaintiff’s survival action for gross negligence. So long as the allegations in the complaint support a plausible claim for relief, Plaintiff’s claim must survive Defendant’s motion to dismiss.

But even when accepted as true, Plaintiff’s allegations do not state a plausible gross negligence claim. Plaintiff alleges that Defendants’ gross negligence is reflected in the following omissions:

• Failing to ask Kabogoza about his swimming abilities before renting him a paddleboard;

• Failing to warn Kabogoza of the danger of using and/or misusing the paddleboard and belt-pack flotation device;

• Failing to ensure that Kabogoza was leashed to the paddleboard while using it; and

• Failing to ensure that Kabogoza knew how to use the paddleboard and belt-pack flotation device.

FAC ¶ 25.[2]

These omissions, when viewed in light of the circumstances surrounding this incident, might give rise to a colorable negligence claim had Kabogoza not released Defendants of liability. But they do not rise to the level of culpability found in the cases Plaintiff cites where gross negligence claims survived motions to dismiss. See Cross-Mot. at 10-11. In City of Santa Barbara, the court found that the plaintiff’s claim for gross negligence properly fell outside the defendant’s exculpatory clause when a young girl with epilepsy drowned at defendant’s camp for developmentally-disabled children. 41 Cal.4th at 751-52. The girl’s parents had told the city that their daughter was prone to seizures while in the water and required constant supervision. Id. at 752. Even so, a camp supervisor- knowing the girl had suffered from a seizure less than an hour earlier-diverted her attention while the child was swimming. Id. The girl had a seizure and drowned. Id.Mayall v. USA Water Polo,Inc., 909 F.3d 1055 (9th Cir. 2018) and Lewis v. Mammoth Mountain Ski Area, No. 1:07-cv-00497-OWW-GSA, 2009 WL 426595 (E.D. Cal. Feb. 20, 2009) involved similarly culpable omissions.

The defendants here differ from the defendants in City of Santa Barbara, Mayall, and Lewis in several important respects. First, Defendants knew that Kabogoza had safely engaged in paddleboarding before. FAC ¶ 9. Unlike in City of Santa Barbara, where defendant knew the decedent had a history of having seizures in the water; Mayall, where defendant knew water-polo players were dangerously returning to play after suffering concussions; and Lewis, where the employee knew he was leading beginner snowmobilers, Defendants had no reason to know that Kabogoza was at an increased risk of harm. In fact, Defendants knew that he had a history of safely participating in this activity. FAC ¶ 9. Kabogoza rented paddleboards from Blue Water Boating on up to three previous occasions. Id.

Furthermore, Defendants equipped all of their customers with safety information and safety equipment regardless of their skill level. FAC ¶¶ 6, 16. Defendants made sure that each renter signed a rental agreement that included clear safety instructions about the products it rented. FAC, Ex. A. Defendants gave each of their customers flotation devices to protect against the inherent and inevitable risk of falling into the ocean. FAC ¶ 6. They also made paddleboard leashes available to all their customers even though nine out of ten renters opted not to use them. FAC ¶ 16.

Plaintiff makes much of the fact that Defendants did not ask about each customer’s swimming abilities or require each customer to have use a leash. FAC ¶ 25; Cross-Mot. at 11. Nor did Defendants specifically work with its customers to ensure they were correctly using the flotation devices. FAC ¶ 25; Cross-Mot. at 11. Rental companies can, of course, always do more to ensure that their customers have the safest possible experience. And when those companies’ rentals involve the level of risk that gives way to this sort of tragedy, they likely should. But the law does not task the Court with answering that question today. Here, the question is whether Defendants acted with “a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ ” Based on Plaintiff’s pleadings, the Court cannot find that they did.

The Court dismisses Plaintiff’s gross negligence claim without prejudice.

c. Wrongful Death

Plaintiff has not stated a wrongful death claim. Nor did she meaningfully oppose Defendants’ motion to dismiss this claim. California law governs wrongful death claims regardless of whether the claim arises under the court’s diversity or admiralty jurisdiction. Yamaha Motor Corp., 516 U.S. At 206-07. To support a claim of negligent wrongful death under California law, “a plaintiff must establish the standard elements of negligence: defendants owed a duty of care; defendants breached their duty; and defendants’ breach caused plaintiff’s injury.” Hayes v. Cnty.of San Diego, 736 F.3d 1223, 1231 (9th Cir. 2013) (citing Wright v. City of Los Angeles, 219 Cal.App.3d 318, 344 (1990)).

A wrongful death action-unlike claims brought under the state’s survival statute-belong to the decedent’s heirs, not to the decedent. Madison v. Super. Ct., 203 Cal.App.3d 589, 596 (1988). All the same, “a plaintiff in a wrongful death action is subject to any defenses which could have been asserted against the decedent.” Id. at 597. These defenses include a decedent’s decision “to waive the defendant’s negligence and assume all risks.” Id.

Here, Kabogoza signed a rental agreement where he expressly assumed the risks of paddleboarding and released Defendants of liability. FAC, Ex. A. To the extent that the assumption-of-risk and exculpatory clauses purport to release Defendants from liability for ordinary negligence, they are valid. See FAC, Ex. A. See also City of Santa Barbara, 41 Cal.4th at 755-58; Knight v. Jewett, 3 Cal.4th 296, 319-21 (1992). And as already discussed, Plaintiff does not make a showing of gross negligence that would bring her wrongful death action outside the rental agreement’s scope.

The rental agreement precludes Plaintiff from making out a claim of ordinary negligence. To the extent that her wrongful death claim is predicated on Defendants’ ordinary negligence, the Court dismisses it with prejudice.

B. Plaintiff’s Cross-Motion for Summary Judgment

The Court has dismissed the gross negligence claim covered by Plaintiff’s Motion for Partial Summary Judgment. The arguments raised in Plaintiff’s motion are, therefore, moot.

III. ORDER

For the reasons set forth above, the Court GRANTS Defendants’ Motion to Dismiss. Plaintiff’s gross negligence claim is DISMISSED WITHOUT PREJUDICE. If Plaintiffs elect to amend their complaint with respect to these claims, they shall file a Second Amended Complaint within twenty (20) days of this Order. Defendants’ responsive pleading is due twenty (20) days thereafter. Plaintiff’s wrongful death claim is DISMISSED WITH PREJUDICE to the extent that it is based on Defendants’ ordinary negligence.

The Court DENIES AS MOOT Plaintiff’s Motion for Summary Judgment on her gross negligence claim.

IT IS SO ORDERED.

———

Notes:

[1] This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for February 19, 2019.

[2] Plaintiff also alleges that Defendants breached a duty to Kabogoza by failing to safely manufacture the paddleboard and flotation device, and by failing to timely issue recalls of the defective products. FAC ¶ 25. But to date, Plaintiff has not joined any manufacturers or distributors as defendants.

You can collect for damaged gear you rented to customers if your agreements are correct. This snowmobile outfitter recovered $27,000 for $220.11 in damages.

Posted: May 13, 2019 | Author: Recreation Law | Filed under: Colorado, Contract, Release (pre-injury contract not to sue) | Tags: admissible, attorneys' fees, cases, collection, collector, credit card, debt collection, debt collector, demand letter, demand letters, discovery, disputed, documents, Email, engaging, entity, genuine, law firm, letters, machine, matters, missing, Mountain Law Group, nonmoving, nonmoving party, opposing, owed, parties, practice of law, preface, principal purpose, regularity, regularly, Rental, Rental Agreement, ride, signature, Snowmobile, Summary judgment, summary judgment motion | 1 Comment

It helps to get that much money if the customer is a jerk and tries to get out of what they owe you. It makes the final judgment even better when one of the plaintiffs is an attorney.

Citation: Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514, 2012 WL 95208

State: Colorado; United States District Court for the District of Colorado

Plaintiff: Tracy L. Hightower-Henne, and Thomas Henne

Defendant: Leonard M. Gelman

Plaintiff Claims: Violation of the Fair Debt Collections Act

Defendant Defenses: They did not violate the act

Holding: For the Defendant

Year: 2012

Summary

The plaintiff’s in this case rented snowmobiles and brought one back damaged. The release they signed to rent the snowmobiles stated if they damaged the snowmobiles they would have to pay for the damage and any lost time the snowmobiles could not be rented (like a car rental agreement).

The plaintiffs damaged a snowmobile and agreed to pay for the damages. The Snowmobile outfitter agreed not to charge them for the lost rental income.

When the plaintiff’s got home, they denied the claim on their credit card bill. The Snowmobile outfitter sued them for the $220.11 in damages and received a judgment of $27,000.

The plaintiff then sued the attorney representing the snowmobile outfitter for violation of the federal fair debt collection’s act, which is the subject of this lawsuit. The plaintiff lost that lawsuit also.

This case shows how agreements in advance to pay for damages from rented equipment are viable and can be upheld if used.

Facts

Although this is described as a debt collection case, it is a case where an outfitter can recover for the damages done to his equipment that he rented to the plaintiffs. The facts are from this case, which took them from an underlying County Court decision in Summit County Colorado.

Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely visible to any driver. At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee and charged Mr. Henne a total of only $220.11.

…one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by CBR against Mr. and Mrs. Henne in Summit County Court. This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.

This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court does not believe that the fairing just fell off.”

Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.

CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.”

At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s sig-nature on the damage estimate and the credit card slip were forgeries. The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.”

As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.

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

The facts set forth in the underlying damage recover case, are the important part. In this case, the attorney for the snowmobile outfitter was found not to have violated the federal fair debt collections act.

In awarding judgment to the defendant in this case, the judge also awarded him costs.

Defendant Leonard M. Gelman’s Motion for Summary Judgment is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.

Adding insult to injury. Sometimes it be better to quit while you are behind.

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

Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514

Posted: May 1, 2019 | Author: Recreation Law | Filed under: Colorado, Contract, Legal Case, Release (pre-injury contract not to sue) | Tags: admissible, attorneys' fees, collection, collector, credit card, demand letters, discovery, disputed, Email, engaging, entity, genuine, law firm, machine, missing, Mountain Law Group, nonmoving party, opposing, owed, practice of law, preface, principal purpose, regularity, regularly, Rental, rental agree-ment, ride, signature, Snowmobile, Summary judgment | Leave a comment

Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514

Tracy L. Hightower-Henne, and Thomas Henne, Plaintiffs, v. Leonard M. Gelman, Defendant.

Civil Action No. 11-cv-01114-KMT-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2012 U.S. Dist. LEXIS 4514

January 12, 2012, Decided

January 12, 2012, Filed

CORE TERMS: collection, collector, snowmobile, summary judgment, discovery, credit card, rental, Mountain Law Group, demand letters, email, entity, law firm, preface, missing, nonmoving party, principal purpose, regularity, regularly, disputed, opposing, genuine, rental agreement, signature, machine, ride, admissible, engaging, owed, practice of law, attorney’s fees

COUNSEL: [*1] For Tracy L. Hightower-Henne, Thomas J. Henne, Plaintiffs: Daniel Teodoru, Erin Colleen Hunter, West Brown Huntley & Hunter, P.C., Breckenridge, CO.

For Leonard M. Gelman, Defendant: Rusty David Miller, Thomas Neville Alfrey, Treece Alfrey Musat, P.C., Denver, CO.

JUDGES: Kathleen M. Tafoya, United States Magistrate Judge.

OPINION BY: Kathleen M. Tafoya

OPINION

ORDER

This matter is before the court on Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] (“Mot.”) filed August 12, 2011. Plaintiffs, Tracy Hightower-Henne and Thomas Henne (collectively “the Hennes”), responded on September 14, 2011 [Doc. No. 23] (“Resp.”) and the defendant filed a Reply on October 3, 2011 [Doc. No. 25]. Also considered is Plaintiffs’ “Motion to File Sur-Reply” [Doc. No. 26], which is denied.¹

1 Neither the Federal Rules of Civil Procedure nor the Local Rules of Practice in the District of Colorado provide for the filing of a surreply. Additionally, the court’s review of the proposed surreply reveals it is nothing more than an attempted unauthorized additional bite at the proverbial apple and adds nothing of merit to the summary judgment analysis.

Background

On February 8, 2010, Nebraska residents Tracy L. Hightower-Henne [*2] and her husband Thomas Henne joined a small group of friends and family for a snowmobile ride in Vail, Colorado. Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. (Mot., Ex. H, Judgment Order of County Court Judge Wayne Patton, April 21, 2011, hereinafter “Judgment Order” at 1.)² While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. (Id.) Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. (Id. at 2.) Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely [*3] visible to any driver. (Id. at 3.) At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.³ (Id. at 2.) Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.⁴ (Id.) Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee⁵ and charged Mr. Henne oa total of only $220.11. (Mot., Ex. B.)

2 As will be discussed in more detail herein, one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by [*4] CBR against Mr. and Mrs. Henne in Summit County Court, Case Number 10 C 255 ). (See Mot., Ex. G; hereinafter, the “Summit County case.”) This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.

3 This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” (Judgment Order at 3.) The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court [*5] does not believe that the fairing just fell off.” (Id.)

4 Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.

5 CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.” (Mot., Ex. B.)

Upon their return to Nebraska, however, Mr. and Mrs. Henne apparently decided they did not want to pay for the damage to the snowmobile, even with the waiver of the rental loss, and contested the charge to Mr. Henne’s credit card resulting in a reversal of the charge by the credit card issuer. Further, the Hennes leveled criminal forgery accusations against CBR’s employee with the Frisco, Colorado Police Department (id. at 4), alleging that the acknowledgment of damage form and the credit card slip were not signed by Mr. Henne. The police department investigated, but no charges were filed.

Mr. Henne’s ultimate cancellation of his former acquiescence to payment caused CBR to contact their corporate lawyer, Defendant Gelman, and ask that he attempt to obtain payment from the Hennes, authorizing a law suit if initial requests for payment failed. Obviously, CBR was no longer willing [*6] to waive the fee for loss of rental which was part of the contract Mrs. Hightower-Henne signed. (Id. at 2.)

At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s signature on the damage estimate and the credit card slip were forgeries. (Id. at 4.) The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. (Id.) The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.” (Id.)

After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees provision, the court awarded CBR [*7] $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.⁶ The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.” (Mot., Ex. I, June 22, 2011 Order of Hon. Wayne Patton, hereinafter “Atty. Fee Order” at 3.) The court also found that “although this was a case akin to a small claims case, Mrs. Hightower-Henne defended the case as if it were complex litigation.”⁷ (Id. at 1.) Judge Patton stated, with respect to the counterclaim filed by the Hennes, that “[a]lthough Mrs. Hightower-Henne did not pursue that claim at trial it shows the lengths she was willing to go to avoid payment of what was a fairly small claim.” (Id. at 1.)

6 Costs were awarded against both Mr. and Mrs. Henne [*8] jointly and severally.

7 In December 2010, the Hennes hired outside counsel to defend them in the county court action. (Id. at 4.)

In a prodigiously perfect example of throwing good money after bad, the Hennes now continue to prosecute this federal action against the lawyer representing CBR in the Summit County case, alleging violations of the federal Fair Debt Collection Practices Act (“FDCPA”).⁸ Unfortunately, even though the issue was raised at some point in the county court case, (see id. at 3, “Mrs. Hightower-Henne also made allegations that Plaintiff was violating fair debt collection laws”), these particular allegations were not resolved by the county court. Therefore, this court is now compelled to reluctantly follow the Hennes down this white rabbit’s hole to resolve the federal case.

8 This case was originally filed against CBR’s lawyer by the Hennes in Summit County on March 31, 2011, suspiciously [*9] a mere one week before commencing trial on the underlying case before Judge Patton. Defendant Gelman removed the case to federal court post-trial on April 27, 2011, one week subsequent to Judge Patton’s ruling against the Hennes. Between April 27, 2011 and August 12, 2011, the Hennes could have revisited the wisdom of continuing with this case had they been so inclined. However, the Hennes have not sought to even amend their Complaint in this matter, even though the findings call into question many of the arguments embodied in the federal complaint. (See, e.g., Compl. ¶ 26.)

Analysis

A. Legal Standard

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing [*10] Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary judgment stage of litigation, a plaintiff’s version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). [*11] “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Thomson, 584 F.3d at 1312.

B. Request for Additional Discovery

As an initial matter, Plaintiffs request the court grant them further discovery in order to fully explore the matters raised by Defendant Gelman’s affidavit, attached to the Motion. [Doc. No. 17-1, hereinafter “Gelman Affidavit.”]

The party opposing summary judgment and who requests additional discovery must specify by affidavit the reasons why it cannot present facts essential to its opposition to a motion for summary judgment by demonstrating (1) the probable facts are not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable the party to obtain those facts and rebut the motion for summary judgment. Valley Forge Ins. Co. v. Healthcare Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010)(internal quotations omitted); Been v. O.K. Indust., Inc., 495 F.3d 1217, 1235 (10th Cir. 2007)(The [*12] protection under Rule 56(d) “arises only if the nonmoving party files an affidavit explaining why he or she cannot present facts to oppose the motion.”)

As noted above, the instant motion and the Gelman Affidavit were filed on August 12, 2011. The discovery cut-off date in this case was not until October 3, 2011. (Scheduling Order, [Doc. No. 10] at 6.) Therefore, written discovery could have been timely served any time prior to August 31, 2011. When Defendant filed his motion and the affidavit, Plaintiffs still had nineteen days to compose and serve interrogatories and requests for production of documents in order to obtain substantiation – or lack thereof – of the matters contained in the Gelman Affidavit. Additionally, Plaintiffs had 49 days remaining within which to notice and schedule the deposition of Mr. Gelman, or any other person. Apparently, Plaintiffs did not avail themselves of these opportunities, or, for that matter, any other attempt to obtain discovery during the entirety of the discovery period. There is no reason for the court to now accredit Plaintiffs’ professed need for discovery at this late date when they did not undertake any discovery within the appropriate time [*13] frame even though the issues were then squarely before them. The request for further discovery is denied.

C. Defendant Gelman’s Status as Debt Collector

The court has been presented with the following: the testimony through affidavit of Leonard M. Gelman; the testimony through affidavit of Tracy Hightower (Resp., Ex. 3 [Doc. No. 23-3] “Hightower Affidavit”); the Judgment Order and the Atty. Fee Order of Judge Wayne Patton referenced infra; the Complaint filed in the Summit County case – case number 10 C 255 (Mot., Ex. G); a letter from Lee Gelman to Thomas Henne dated April 1, 2010 (Mot., Ex. D; Resp., Ex. 1, “Demand Letter”); a letter to Lee Gelman from Tracy L. Hightower-Henne dated April 5, 2010 (Mot., Ex. E); an email exchange between Lee Gelman and Tracy Hightower dated April 13, 2010 (Resp., Ex. 4); an undated internet home page of Mountain Law Group (Mot., Ex. F); a document purporting to be a “Colorado Court Database” listing seven cases involving as plaintiff either Summit Interests Inc., Back Country Rentals, or Colorado Backcountry Rentals for the time period March 25, 2009 through November 18, 2010 (Resp., Ex. 7); three letters signed by “Lee Gelman, Esq.” drafted on letterhead [*14] of a law firm named Dunn Keyes Gelman & Pummell with origination dates of March 10, 2008, March 19, 2009 and December 19, 2008 (Resp., Ex. 8); and, the snowmobile rental agreements and other documents relevant to the Summit County case (Mot., Exs. A – C).

The FDCPA regulates the practices of “debt collectors.” See 15 U.S.C. § 1692(e). If a person or entity is not a debt collector, the Act does not provide any cause of action against them. Plaintiffs’ Complaint alleges only violations of the FDCPA (See Compl. [Doc. No. 2]) by Defendant Gelman; therefore, if Defendant is not a debt collector, Plaintiffs’ action must fail.

The FDCPA contains both a definition of “debt collector” and language describing certain categories of persons and entities excluded from the definition.⁹ Thus, an alleged debt collector may escape liability either by failing to qualify as a “debt collector” under the initial definitional language, or by falling within one of the exclusions. The plaintiff in an FDCPA claim bears the burden of proving the defendant’s debt collector status. See Zimmerman v. The CIT Group, Inc., Case No. 08-cv-00246-ZLW-KMT, 2008 U.S. Dist. LEXIS 108473, 2008 WL 5786438, at *9 (D. Colo. October 6, 2008) (citing Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 60 (2d. Cir.2004).

9 None [*15] of these enumerated exceptions are alleged to be applicable in this case.

The Act defines “debt collector” as:

[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

15 U.S.C. § 1692a(6). See Allen v. Nelnet, Inc., Case No. 06-cv-00586-REB-PAC, 2007 WL 2786432, at *8-9 (D. Colo. Sept. 24, 2007). The Supreme Court has made it clear that the FDCPA applies to attorneys “regularly” engaging in debt collection activity, including such activity in the nature of litigation. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). The FDCPA establishes two alternative predicates for “debt collector” status – engaging in such activity as the “principal purpose” of an entity’s business and/or “regularly” engaging in such collection activity. 15 U.S.C. § 1692a(6). It is clear from the evidence that debt collection is not Defendant Gelman’s or his law firm’s principal purpose, nor is debt collection the principal purpose of non-defendant CBR. Goldstein, 374 F.3d at 60-61. Therefore [*16] the court must examine the issue from the regularity perspective. The Goldstein court directed

Most important in the analysis is the assessment of facts closely relating to ordinary concepts of regularity, including (1) the absolute number of debt collection communications issued, and/or collection-related litigation matters pursued, over the relevant period(s), (2) the frequency of such communications and/or litigation activity, including whether any patterns of such activity are discernable, (3) whether the entity has personnel specifically assigned to work on debt collection activity, (4) whether the entity has systems or contractors in place to facilitate such activity, and (5) whether the activity is undertaken in connection with ongoing client relationships with entities that have retained the lawyer or firm to assist in the collection of outstanding consumer debt obligations. Facts relating to the role debt collection work plays in the practice as a whole should also be considered to the extent they bear on the question of regularity of debt collection activity . . . . Whether the law practice seeks debt collection business by marketing itself as having debt collection expertise [*17] may also be an indicator of the regularity of collection as a part of the practice.

Id. at 62-63.

1. Defendant Gelman’s Practice of Law at Mountain Law Group

The testimony of Mr. Gelman provided through his affidavit is considered by the court to be unrefuted since Plaintiffs failed to avail themselves of any discovery which might have provided grounds for contest.

After recounting his background as an environmental lawyer for the Department of Justice, Mr. Gelman describes his practice of law with the Mountain Law Group as an attorney and through the Colorado Office of Dispute Resolution as a mediator. (Gelman Aff. ¶¶ 1, 3.) Mr. Gelman also acts as the manager of his wife’s medical practice. (Id. ¶ 5.) Because of his responsibilities as a mediator and an administrator, Mr. Gelman only spends approximately 25% of his working time engaged in the practice of law through Mountain Law Group. (Id. ¶ 8.) If one considers a normal business day to be nine hours, Mr. Gelman then spends approximately 2.25 hours a day practicing law at the Mountain Law Group. Of that time at the law firm, Mr. Gelman devotes approximately 30% to “Business/Contracts,” the only area of his practice which generates any [*18] debt collection activity. (Id. ¶¶ 8, 22.) Extrapolating, then, Mr. Gelman spends approximately .67 of an hour, or approximately 45 minutes, out of each day pursuing business matters of all kinds for his clients.

One of Mr. Gelman’s business clients is CBR to which he provides legal assistance “with all of CBR’s corporate needs . . . [including] a) contract drafting and consultation on rental agreements, waivers, and other forms; and b) representation concerning regulatory and enforcement matters between the U.S. Forest Service and CBR.” (Id. ¶ 19.) Of all the clients of the Mountain Law Group’s seven lawyers, CBR is the only one who generates any debt collection work at all. (Id. ¶¶ 7, 22, 23.) Additionally, of the seven lawyers, Mr. Gelman, through his client CBR, is the only lawyer to have ever worked on, in any capacity, any debt collection matter.¹⁰ (Id.)

10 As noted in the Hightower Affidavit, it is not disputed that, as part of CBR’s employment of Mr. Gelman as their corporate attorney, they requested that he attempt to collect the Henne’s debt.. (Id. ¶ 2.)

Over a forty (40) month period, Mr. Gelman states that he sent only 18 demand letters on behalf of CBR to renters of snowmobiles [*19] who did not pay for damages they caused to CBR’s equipment. (Id. ¶ 20.) This averages out to one demand letter every 2.5 months.¹¹

11 Of course, this does not mean that the demand letters are actually sent on such a regular basis.

In connection with Mr. Gelman’s practice of law with the Mountain Law Group, the court reviewed what is purportedly the law firm’s internet home page. (Mot., Ex. F.) This submission contains no date or retrieval or publication. Therefore, the court can give it little weight. However, as part of the analysis, the court notes that at the time of the internet display – whenever that was – the Mountain Law Group’s home page did not include any advertisement suggesting they provided debt collection services or as had any expertise in the collection of debt.

Mr. Gelman otherwise states that the Mountain Law Group neither owns nor uses any specialized computer software designed to facilitate debt collection activity. (Gelman Aff. ¶ 12.) Further, his unrefuted testimony is that the firm employs no paralegal or other staff to assist in debt collection for the firm. (Id. ¶ 5.)

Plaintiffs, however, assert that Mr. Gelman regularly and frequently pursues debt collection matters [*20] on behalf of CBR, pointing the court’s attention to a document entitled “Colorado Court Database” (“CCD”). The CCD may indicate that CBR or Summit Interests, Inc.¹² was involved in seven¹³ case filings in 2009 and 2010. (Resp., Ex. 7.) None of the cases contained on the CCD indicate whether or not Defendant Gelman represented the named entity, nor do any of the cases identify the other parties. The CCD is in the form of a table with columnar headings, “Name,” “Case,” “Filed,” “Status,” “Party” and “County.” Under the column “Party,” six of the cases indicate “Money” and one indicates “Breach of Contract”; both of these terms are undefined. The court does not begin to understand how “Breach of Contract” for instance, can be a “party ” to a lawsuit. The court is completely unable to ascertain the relevance of this document or what bearing it has on whether or not Mr. Gelman is a debt collector since it does not reference Mr. Gelman or debt collection. The CCD, unintelligible as it stands, is therefore inadmissible and will not be considered for any purpose in the summary judgment proceeding. See Johnson v. Weld County, Colo., 594 F.3d at 1209-10.

12 In the April 1, 2010 demand letter from [*21] Mr. Gelman to Mr. Henne, Mr. Gelman professes to represent “Summit Interests, Inc., d/b/a/ Colorado Backcountry Rentals.” (Resp, [Doc. No. 23-1].)

13 The documents references more than ten items, but several have the same case number.

2. Mr. Gelman’s Debt Collection Methodology

This case involves essentially two communications from Mr. Gelman: the April 1, 2010 letter to Mr. Henne and the April 13, 2010 email from Mr. Gelman to Mrs. Hightower-Henne following her letter professing to represent Mr. Henne. (Compl. ¶¶ 21-23, 25, re: Demand Letterl and id. ¶ 24, re: April 13, 2010 email.)

a. Debt Collector Preface

In the April 1, 2010 letter, Mr. Gelman represented that “[t]his firm¹⁴ is a debt collector” and in the April 13, 2010 email, under his signature block, was the notation, “This is from a debt collector . . .” The court notes that the warning on the bottom of the April 13, 2010 email does not appear to be part of the normal signature block of Mr. Gelman, because it does not appear on the short transmission at the beginning of the email string wherein Mr. Gelman advised “Tracy,” that he just left her a voice mail as well. (Resp. at Doc. No. 23-4.) This email warning, therefore, appears [*22] to have been specifically typed in for inclusion in the lengthy portion of the email.

14 The letterhead on the communication is “Mountain Law Group.” Mountain Law Group is not a defendant in this action.

Mr. Gelman states he has mediated a large number of debt collection disputes and is therefore “relatively familiar with the collection industry.” (Gelman Aff. ¶ 11.) While the court considers the language used by Mr. Gelman – commonly referred to as a “mini-Miranda” or the “debt collector preface” – as “some” evidence to be considered in the debt collector determination, it is not particularly persuasive standing alone. First, setting forth such a debt collector preface does not create any kind of equitable estoppel. Equitable estoppel requires a showing of a misleading representation on which the opposing party justifiably relied which would result in material harm if the actor is later permitted to assert a claim inconsistent with the prior representation. Plaintiffs have offered no evidence to support a claim that they detrimentally relied upon the debt collector preface. See In re Pullen, 451 B.R. 206, 210 (Bkrtcy. N. D. Ga. 2011).

When attempting to collect a debt, the court applauds [*23] a practice whereby the sender recognizes itself as a debt collector in a mini-Miranda warning regardless of any legal requirement and considers such an advisement prudent and in the spirit of the FDCPA. This course of action would be expected of an attorney such as Mr. Gelman who frequently is in a position to mediate debt collection disputes. However, calling oneself a rose, does not necessarily arouse the same olfactory response as would a true rose.

b. Use of Form Letters

Plaintiffs argue that Mr. Gelman communicates as a debt collector through the use of form letters. For this proposition, they attach Exhibit 8, three letters apparently authored by Mr. Gelman when he was associated with the law firm of Dunn Keyes Gelman & Pummell, LLC. Each of the three letters appear to be what is commonly known as a demand letter – an attempt to collect money from persons who allegedly owed CBR as a result of damage done to a snowmobile. Each letter begins with a one line salutation introducing the lawyer as representing Colorado Backcountry Rentals, Inc. Thereafter, each letter proceeds for several paragraphs to outline specific and unique facts concerning the alleged debtor’s obligation for damages [*24] to CBR. (Id.) Each letter then contains a paragraph, in bold typeface, stating that the debtor can submit a sum certain in settlement of the matter in bold typeface. Each of the three letters contain a summary paragraph at the end which states the letter is a settlement offer and that court proceedings may be instituted if payment is not made. This general format is consistent with the April 1, 2010 demand letter sent to Mr. Henne. Two of the letters in Exhibit 8 contain the debt collector preface at both the beginning and end of the letter; one of the letters contains the legend only at the beginning, similar to the format of the April 1, 2010 demand letter sent to Mr. Henne by Mr. Gelman.

The court finds that these letters are not “form” collection letters such as those which would be utilized by a business engaged primarily in the business of debt collection. Although there is some boilerplate language common to all, each letter is personally authored and the main body of the text is a unique recitation of the facts and circumstances peculiar to that case. These three letters, viewed against the April 1, 2010 letter Mr. Gelman sent to Mr. Henne, are similar only in the boilerplate [*25] language at the beginning and end of the letter and do not persuade the court that they are form letters indicating that Mr. Gelman is in the regular business of collecting debts.

c. Pattern of Litigation Activity

Mrs. Hightower-Henne states, without any evidentiary foundation, that Defendant has filed “several suits for collections for CBR” which indicate “a pattern of escalating fees for nominal claims.” (Hightower Affidavit ¶ 4.) She does not further describe or attach any of the cases to which she refers, although one might assume they may be among those cases sketchily mentioned in rejected Exhibit 7 to the Plaintiffs’ Response. Mrs. Hightower-Henne blithely asserts that she has spoken to several persons who were “parties in these suits” but does not state what significance anything they may have told her was, or for that matter, what they even said. (Id.) Although the court will recognize this testimony as admissible, it is wholly unpersuasive as to the issue to which it is apparently directed.

d. Summary

Considering the undisputed testimony of Mr. Gelman and Mrs. Hightower-Henne together with the admissible documentary evidence submitted by the parties, this court finds that there [*26] are no material facts in dispute relevant to the determination of whether Mr. Gelman is a debt collector as defined in the FDCPA. For all the reasons set forth above, the court finds that Mr. Gelman is not a debt collector pursuant to the FDCPA and therefore, summary judgment in his favor is appropriate.

Given that the determination that Mr. Gelman is not a debt collector is dispositive of the case, the court declines to address further Mrs. Hightower-Henne’s standing to sue or whether any of the actions undertaken by Mr. Gelman would have violated the FDCPA had he been found to be a debt collector under the Act.

Wherefore, it is ORDERED

1. Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.

2. Plaintiffs’ “Motion to File Sur-Reply,” [Doc. No. 26] is DENIED.

3. The Final Pretrial Conference set for January 19, 2012 at 10:45 a.m. is VACATED

Dated this 12th day of January, 2012.

BY THE COURT:

/s/ Kathleen M Tafoya

Kathleen M Tafoya

United [*27] States Magistrate Judge

Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.

Posted: February 26, 2018 | Author: Recreation Law | Filed under: Florida, Release (pre-injury contract not to sue), Rivers and Waterways | Tags: admiralty, boater, Boating, Collision, exoneration, fault, genuine, handling, Jet Ski, Key West Water Tours LLC, liability arising, maritime, maritime law's, negligence cases, Negligence per se, panicked, per se, Personal Watercraft, Privity, Public Policy, PWC, Rental, renters, safe, ship, Standard of Care, State Boating Law Administrators Betz Depo, statutes enacted, statutory rule, Summary judgment, tour guide, unseaworthiness, vessel, Watercraft | Leave a comment

Defendant took plaintiffs on a guided personal watercraft tour with an employee/guide who had not been trained as required by Florida’s law.

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

State: Florida: United States District Court for the Southern District of Florida

Plaintiff: Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva

Defendant: Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff

Third Party Defendant(s): Jeffrey Wilkerson, Third-Party Defendant

Plaintiff Claims: Negligence Per Se

Defendant Defenses: : (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

Holding: For the Plaintiff

Year: 2007

Summary

If there is a statute that applies to your business or activity, you must know and abide by the statute. Failure to do so can void all of your defenses and in some cases the claim may not be covered by your insurance policy.

Here the defendant rented personal watercraft to the plaintiffs without instructing the guests as required by Florida Statute. By not abiding by the statute, the defendant’s defenses were void and the defendant’s liability was decided by the court.

Facts

The plaintiff’s, husband, wife and daughter paid for a guided personal watercraft (PWC or formerly known as jet ski) tour. During the tour, another tour participant panicked and drove his PWC at a high rated of speed into the plaintiff’s.

The plaintiff’s sued the defendant PWC tour company. The PWC tour company sued the participant who drove the PWC into the plaintiff’s as third-party plaintiffs versus third party defendants.

The defendants relied on four defenses:

(1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness;

(2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness;

(3) Florida statutory law does not apply; and

(4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

The plaintiff argued that because the defendant did not hire or require it’s guides to meet educational requirements required by state law, the defendant was negligent per se.

Negligence per se is negligence that violates a law or regulation which was created for the purpose of protecting a group of people that were injured by the plaintiff.

The Florida statutes in question were:

Florida Statute § 327.39

§ 327.39. Personal watercraft regulated.

(b) 1. It is unlawful for the owner of any leased, hired, or rented personal watercraft, or any person having charge over or control of a leased, hired, or rented personal watercraft, to authorize or knowingly permit the watercraft to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.

The second statute was Florida Statute § 327.54

§ 327.54. Liveries; safety regulations; penalty.

(1) A livery may not knowingly lease, hire, or rent a vessel to any person:

(e) When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:

1. Operational characteristics of the vessel to be rented.

2. Safe vessel operation and vessel right-of-way.

3. The responsibility of the vessel operator for the safe and proper operation of the vessel.

4. Local characteristics of the waterway where the vessel will be operated.

Any person delivering the information specified in this paragraph must have successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.

The first statute required the person renting a PWC to instruct the renter on the use of the PWC. The second statute identified the instructions to be given and required the person giving the instructions to have successfully completed a boater safety course. The defendant’s employee in this case had not given the necessary instructions and had not completed a boater safety course.

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

Federal judiciary has a rule they apply to these situations called the Pennsylvania Rule. The Pennsylvania Rule states:

…when a ship at the time of an collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.

Basically, the Pennsylvania rule shifts the burden of proof from the plaintiff, who normally has the burden to proof the defendant was at fault, to the defendant, requiring the defendant to prove, it was not at fault.

The next hurdle is the state law’s relationship to admiralty law. Admiralty law is a Federal law, in fact, a series of international laws, to control transportation of goods and people across borders and international travel. States can only make laws concerning admiralty issues if there is not federal law on the subject already. If the federal law conflicts with the state law, the federal law applies.

There is no federal law concerning the rental of PWCs. So, the two Florida statutes were available to the plaintiff. Additionally, the Florida statutes were created to protect a specific group of people, and the plaintiffs were part of the group to be protected.

These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

Side note: the defendant co-owner admitted he was not familiar with Florida’s statutes that were at issue. The court’s response was the classic you learn in law school, and you should learn in kindergarten. “…ignorance of the law is not a defense.”

The defendant argued that instruction would have changed the accident or prevented the accident. The court did not buy that argument.

However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

For the defendant not to be liable, the must be completely free of fault, and the violation of the Florida statute created fault on the part of the defendant; consequently, the defendant was not free of fault.

The defendant then argued the limitation of liability under admiralty law applied. The limitation of liability states the defendant is liable to the value of the vessel after the accident. Here the defendant argued the extent of their liability was $3,000 because that was what the PWC was worth.

For the defendant to use this defense, required a two-step test:

(1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.

Since the defendants could have easily investigated whether their employee had taken a boater safety course, and they did not, they could not take advantage of the limitation of liability because the defendant should have had knowledge of the unseaworthiness of the PWC.

The next defense argued was the release signed by the plaintiff. Here the release was void because it violated public policy. The statute created a safety requirement on the part of the defendant. The statute was enacted to keep the public safe. Therefore, failing to keep the public safe was a public policy issue.

[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.”

In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

The defendant’s motion for summary judgement was denied. The plaintiff had filed a motion for summary judgment as to the liability of the defendant. That motion was granted. The sole remaining issue then was the amount of the liability, how much the defendant owed the plaintiff.

So Now What?

Releases are the best defense to lawsuits in most states. However, the most effective legal argument to void a release is to claim the defendant was Negligence Per Se. Here the court found that because the statutes were created for public policy reasons, the release violated public policy and thus was void.

Most state courts just void the release stating the release cannot prevent claims based on violation of a statute.

More importantly, any time a statute is created that applies to your business or activity, you must understand and follow the statute. Both statutes argued above had criminal penalties for violation of the statutes. Not only was the defendant liable in a lawsuit for violating the statutes, the defendants could be fined by the state.

Don’t get into business without knowing the law.

More articles on Negligence Per Se

Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

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Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

Posted: February 17, 2018 | Author: Recreation Law | Filed under: Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: admiralty, boater, Boating, Collision, exoneration, fault, genuine, handling, Jet Ski, liability arising, maritime, maritime law's, negligence cases, Negligence per se, panicked, per se, Personal Watercraft, Privity, Public Policy, PWC, Rental, renters, safe, ship, Standard of Care, State Boating Law Administrators Betz Depo, statutes enacted, statutory rule, Summary judgment, tour guide, unseaworthiness, vessel, Watercraft | Leave a comment

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva, a minor, Plaintiffs, vs. Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff, vs. Jeffrey Wilkerson, Third-Party Defendant.

Case No. 06-10116-CIV-MOORE/GARBER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2007 U.S. Dist. LEXIS 46490

June 27, 2007, Decided

June 27, 2007, Entered

SUBSEQUENT HISTORY: Judgment entered by, Motion denied by Tassinari v. Key W. Water Tours, L.C., 2007 U.S. Dist. LEXIS 80872 (S.D. Fla., Oct. 31, 2007)

PRIOR HISTORY: Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 43858 (S.D. Fla., June 18, 2007)

CORE TERMS: watercraft, maritime law’s, collision, boater, fault, summary judgment, boating, unseaworthiness, admiralty, maritime, handling, genuine, rental, vessel, safe, statutory rule, tour guide, public policy, per se, exoneration, privity, renters, ship, panicked, State Boating Law Administrators Betz Depo, liability arising, negligence per se, negligence cases, statutes enacted, standard of care

COUNSEL: [*1] For Ronald Tassinari, an individual, Sheila Silva, an individual and next best friend of Ashley Silva, Ashley Silva, a minor, Plaintiffs: Domingo Carlos Rodriguez, LEAD ATTORNEY, Rodriguez Aronson & Essington, Miami, FL; Patricia Leigh McMillan Minoux, LEAD ATTORNEY, Rodriguez, Aronson & Essington, P.A., Coral Gables, FL.

For Key West Water Tours, L.C., a Florida Corporation, Defendant: Bruce Michael Trybus, Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.

For Key West Water Tours, L.C., a Florida Corporation, ThirdParty Plaintiff: Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.

JUDGES: K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE.

OPINION BY: K. MICHAEL MOORE

OPINION

ORDER GRANTING SUMMARY JUDGMENT AS TO DEFENDANT’S LIABILITY

THIS CAUSE came before the Court upon Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) and Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46).

UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. Background

Plaintiffs are residents [*2] of Massachusetts. Defendant Key West Water Tours, L.C. (“Defendant” or “Water Tours”) is a Florida corporation doing business in Monroe County, Florida, as a personal watercraft (jet skis and/or waverunners) rental agency and provider of guided personal watercraft tours to the public. On or about July 9, 2004, Defendant rented personal watercraft to Plaintiffs at or near Key West, Monroe County, Florida. Defendant then took a group of personal watercraft renters, including Plaintiffs and Third-Party Defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters.

During the tour, the watercraft operated by Third-Party Defendant Jeffrey Wilkerson collided with the watercraft operated by Plaintiffs Ronald Tassinari and Ashley Silva, injuring Plaintiffs Ronald Tassinari and Ashley Silva.

Defendant argues that it is entitled to summary judgment on the following issues: (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence [*3] or unseaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement. Plaintiffs argue that they are entitled to summary judgment because Defendant violated certain Florida State statutes making Defendant negligent per se. Plaintiffs further argue that if Defendant is negligent per se, then Defendant is not entitled to have its liability limited to the value of the watercraft.

II. Standard of Review

The applicable standard for reviewing a summary judgment motion is unambiguously stated in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith 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.

Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir. 1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). [*4] An issue of fact is “material” if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). It is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.

In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party:

may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed. R. Civ. P. 56(e). “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

III. Discussion

A. The Pennsylvania Rule and Florida Statutory Law

Plaintiffs argue that Defendant is negligent per se because Defendant violated [*5] Florida State statutes enacted to protect the safety of personal watercraft renters. Pl. Mot. at 9-14. Federal maritime law’s unique version of negligence per se is embodied in what is called the “Pennsylvania Rule.” In re Superior Constr. Co., 445 F.3d 1334, 1340 (11th Cir. 2006). “Under the Pennsylvania Rule, when a ship at the time of an allision is in actual violation of a statutory rule intended to prevent allisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” Id. (citing The Pennsylvania, 86 U.S. 125, 136, 22 L. Ed. 148 (1873)).

Defendant argues that State law does not apply in a case brought under federal maritime law; therefore, the Pennsylvania rule does not apply to violations of Florida statutes. Def. Resp. at 6-8. However, the Seventh Circuit recognized that “[s]everal courts have applied the Pennsylvania rule to the violation of state statutes or local ordinances.” Complaint of Wasson, 495 F.2d 571, 583 (7th Cir. 1974) [*6] (citations omitted); see also Protectus Alpha Nav. Co., Ltd. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1382-83 (9th Cir. 1985) (violation of Washington State statute would support negligence per se).

Further, State law has been applied in admiralty cases where there is no direct conflict with established federal maritime law. Wilburn Boat Co. v. Fireman’s Fund Insur. Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1955); 1 T. Schoenbaum, Admiralty and Maritime Law § 4-2 (4th ed.); see also Smith v. Haggerty, 169 F. Supp. 2d 376 (E.D. Pa. 2001) (applying State law regulations to negligence claims arising from a boating accident) (vacated on other grounds). The Supreme Court has recognized that “[i]n the field of maritime contracts, as in that of maritime torts, the National Government has left much regulatory power in the States.” Wilburn Boat, 348 U.S. at 313 (the Supreme Court ultimately declined to adopt a federal admiralty rule governing insurance policy provisions and decided to leave that area up to State regulation).

In the present case, Plaintiffs cite to several Florida statutes that were enacted, in part, in response to an act of Congress intended to “encourage greater State participation and [*7] uniformity in boating safety efforts, and particularly to permit the States to assume the greater share of boating safety education, assistance, and enforcement activities.” 46 U.S.C. § 13102 (2007). The Court is not persuaded that statutes enacted in response to Congress’s stated purpose of permitting the states to assume more responsibility in regulation of recreational boat safety are inapplicable merely because they were enacted by a state government.

Further, Defendant has not pointed to any established federal maritime law directly conflicting with and preempting these State statutes. In cases where a State statute conflicts with established federal maritime law or would materially frustrate a tenant of admiralty law, the State statutes should generally not be applied. Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986); Branch v. Schumann, 445 F.2d 175 (5th Cir. 1971); Miami Valley Broadcasting Corp. v. Lang, 429 So. 2d 1333 (Fla. 4th DCA 1983). Defendant overstates the holdings in Branch and Lang, arguing that State law can never be used in maritime negligence cases. Branch and Lang merely stand for the principle that State law cannot change established [*8] substantive maritime law. In Branch and Lang, the State law would have imposed a stricter burden than that established by federal maritime law; because it conflicted with federal maritime law and would have effectively changed the accepted maritime standard of care, the State law could not be applied. The Florida statutes at issue were not designed to circumvent federal maritime law or substitute a stricter standard of care in negligence cases; rather, they were designed to help regulate recreational boating safety. The Pennsylvania rule is an established principle of federal maritime law, which may be applied to violations of Florida State statutes; this application does not, in and of itself, conflict with federal maritime law.

Florida Statute § 327.39 makes it unlawful for the owner of a personal watercraft to “authorize or knowingly permit the [watercraft] to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.” Florida Statute § 327.54 requires that the instruction in the safe handling of personal watercraft with a motor of 10 horsepower or greater be delivered by a person [*9] who has “successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.” These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

In this case, Defendant owned or had control over the personal watercraft involved in the collision. At the time of the collision, Defendant employed Chris Betz (“Betz”) as a personal watercraft tour guide and allowed Betz to provide the safety instruction to persons operating the personal watercraft on the tour, including Jeffrey Wilkerson. Def. Mot. at 4-6. Betz admitted in his deposition that he had never completed a boater’s safety course approved by the National Association of State Boating Law Administrators. Betz Depo. at 12. Co-owner Gerald Grogan admitted that Key West Water Tours does not require its tour guides to have passed a safe boating course. Grogan Depo. at 19. Therefore, Defendant violated Florida [*10] statutes designed to protect boater safety and prevent collisions, by entrusting personal watercraft to persons who were not instructed in the safe handling of the personal watercraft as the law requires. Co-owner Jeremy Ray indicated that he was not very familiar with the Florida statutes at issue. Ray Depo. at 9, 20-21. However, ignorance of the law is not a defense.

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident. Defendant argues that “[t]he sole cause of the subject accident was the negligent operation of a personal watercraft by Third-Party Defendant Jeffrey Wilkerson.” Def. Mot. at 11. Defendant asserts that “[t]here is not a single additional instruction that would have prevented the subject accident.” Id. Betz gave safety instructions. Betz Depo. at 32-33. According to Betz, Jeffrey Wilkerson “was coming in way too fast . . . just like an old lady in a car, panicked, eyes wide open, completely wide open, staring straight at the group and a panic in his face [*11] because he’s going too fast, and never let off the throttle until he hit.” Def. Mot. at 7. Defendant further asserts that Defendant had never had an accident previously and that Jeffrey Wilkerson had operated the watercraft without problem for about two hours before the accident. It is undisputed that Jeffrey Wilkerson panicked and that the watercraft was at full throttle until impact. However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

C. Exoneration From Liability

“An owner will be exonerated from liability when he, his vessel, and crew are found to be completely free of fault.” In re Complaint of Caribbean Sea Transport, 748 F.2d 622, 626 (11th Cir. 1984) (citing Tittle v. Aldacosta, 544 F.2d 752, 755 (5th Cir. 1977)). As discussed above, Defendant cannot be said to be completely free of fault; therefore, Defendant is not entitled to exoneration.

D. Limitation of Liability Under Limitation [*12] Act

The Eleventh Circuit has held that the determination of whether the owner of a vessel is entitled to limitation of liability requires a two-step analysis: (1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.” Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990) (citing Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976)). “Privity and knowledge are deemed to exist where the owner had the means of knowledge or, as otherwise stated, where knowledge would have been obtained from reasonable inspection.” China Union Lines, Ltd. v. A.O. Andersen & Co., 364 F.2d 769, 792-93 (5th Cir. 1966). Under the Pennsylvania rule, as discussed above, Defendant’s violation of Florida statutes regarding proper instruction in safely operating the personal watercraft is presumed to have caused the collision. The owners of Key West Water Tours, L.C. knew, should have known, and could have discovered upon minimal investigation whether its tour guides, who they hired, had completed [*13] approved boater safety courses and whether the requirements of Florida law regarding proper safety and instruction were being met. Therefore, Defendant is not entitled to limitation of liability to the value of the watercraft.

E. Waiver and Hold Harmless Provisions of the Rental Agreement

“[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.” Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 631 (S.D.W. Va 2004) (citations omitted); Restatement (Second) of Contracts § 195 comment a (1981) (“If, for example, a statute imposes a standard of conduct, a court may decide on the basis of an analysis of the statute, that a term exempting a party from liability for failure to conform to that standard is unenforceable.”). In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on [*14] owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

IV. Conclusion

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) is DENIED. It is further

ORDERED AND ADJUDGED that Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46) is GRANTED. The pretrial conference to discuss remaining issues will be held as scheduled, on June 28, 2007.

DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of June, 2007.

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

To prove gross negligence under Washington State law you have to show intentional or reckless misconduct. Assumption of the risk prevents river tuber for suing for his injuries hitting a strainer.

Posted: August 28, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Paddlesports, Rivers and Waterways, Washington | Tags: Assumption of risk, assumption of the risk, comparative negligence, contributory negligence, Duty to Warn, encounter, fallen, fault, Gross negligence, Hazard, impliedly, Inherent Risks, Inner Tube, Livery, log, negligence claim, Outdoor, peril, Reckless, relieve, Rental, risks inherent, River, River Tubing, site, Sport, Summary judgment, Survive, swift, tuber, Tubing, Tubing Livery, warn, Water Sports | Leave a comment

Washington defines assumption of the risk the same way most other courts do. However, the names they sue to describe assumption of the risk are different in some cases and confusing in others.

Here, assumption of the risk stopped claims both for negligence and gross negligence for this tubing case.

Summary

Assumption of the risk is growing again as a defense to different types of claims by plaintiffs. In this case, the plaintiff assumed the risk of his injuries for a tubing accident which barred his negligence claim and his gross negligence claim. The standard of proof needed to prove a claim that cannot be defeated by assumption of the risk in Washington is a much higher level of action on the part of the defendant.

Here the plaintiff failed to plead or allege that level of acts by the defendant.

Washington also uses different names for the types of assumption of the risk that are applied to cases, which can lead to greater confusion.

If you are a defendant, instead of attempting to understand what is or is not assumption of the risk. Spend your time educating your customers, so they know and assume the risk they may be facing.

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

State: Washington, Court of Appeals of Washington, Division Three

Plaintiff: Brian Pellham

Defendant: Let’s Go Tubing, Inc., et al.

Plaintiff Claims: presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion lo-cation, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed.

Defendant Defenses: that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pelham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence.

Holding: For the Defendant

Year: 2017

Facts

The plaintiff rented an inner tube from the defendant. The rental included delivery to the put in by the defendant. This is commonly described as a livery operation as compared to a pure rental where the renter takes the inner tube and goes wherever.

Upon arrival, the plaintiff signed a release and rented an inner tube. The plaintiff uses releases in his business, although what type of business was never discussed by the court.

The bus driver for the defendant told most of the tubers that upon entry they should push off to the far side of the river to avoid a tree that had fallen into the river immediately downriver but out of sight of the put in.

The plaintiff did not hear this warning. The plaintiff and four friends tied their inner tubes together. The current was swift and they quickly rounded the bend where they saw the tree across the river. The rental company gave each renter a Frisbee to use as a paddle. Everyone used the Frisbee to paddle away from the tree, but the plaintiff hit the tree. Falling into the river the plaintiff broke his ear drum. He went under the tree and upon resurfacing; he struck a large branch which gave him a whiplash.

The plaintiff swam to shore and ended his tubing trip. The plaintiff eventually underwent a neck fusion surgery.

The defendant was legally not allowed to remove the strainer from the river.

The plaintiff sued the defendant. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

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

Washington has defined four types of assumption of the risk and has identified them slightly differently than most other states.

Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.

The first two, Express Assumption of the Risk and Implied Assumption of the Risk are still complete bars to a claim of negligence. The second two, Implied Unreasonable and Implied Reasonable have merged into contributory negligence and simply reduce the plaintiff’s damages.

Washington defines the types of assumption of the risk the same way most other states do.

Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.

Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent.

Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk.

Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so.

Washington also names Implied Primary Assumption of the Risk as Inherent Peril Assumption of the Risk.

Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves those known risks. One who participates in sports impliedly assumes the risks inherent in the sport.

How the plaintiff was injured defines whether or not Inherent Peril Assumption of the Risk applies. The court went on to define the inherent peril assumption of the risk as:

One who engages in sports assumes the risks that are inherent in the sport. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport.

Inherent peril assumption of the risk extends to water sports. One who plays in the water assumes the reasonably foreseeable risks inherent in the activity. Water sports include inner tubing and canoe rentals. Inherent risk applies because “Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions.”

For the plaintiff to assume the risk, three elements must be found.

Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk.

Washington also requires the plaintiff to understand the risk. “The rule of both express and inherent peril assumptions of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk.”

However, that does not require knowledge of the specific issues that caused the injury, just knowledge that the injury could occur. Meaning, if the injured party knows that trees fall into rivers, would be enough. There is no requirement that the injured plaintiff knew that a tree fell into the river.

…Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river.

However, even if the plaintiff assumed the risks, a plaintiff cannot assume the risk where the defendant unduly enhanced the risk.

While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks.

This difference places a burden on the plaintiff, in what he or she has to prove to win their claim and a burden on the courts to define what is an increase in the level of danger.

Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages.

However, here any negligence upon the part of the defendant did not increase the risk. The negligence occurred prior to the plaintiff entering the water. The danger was the tree in the river which the defendant could not do anything about.

When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.

The plaintiff also argued in this complaint, that the actions of the defendant were grossly negligent. Gross negligence in Washington is defined as failure to exercise slight care.

Gross negligence claims survive when a release has been signed. The issue before the court was whether gross negligence claims can be stopped if the plaintiff assumed the risk.

At the same time, gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk.

The court then redefined how gross negligence was going to be reviewed in Washington applying an intentional reckless standard as the level required proving gross negligence when a plaintiff assumes the risk.

We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.

There is a difference between gross negligence and reckless misconduct under Washington’s law.

Gross negligence consists of the failure to exercise slight care. Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her.

Because reckless conduct is a higher burden to meet, assumption of the risk becomes a defense that can beat a gross negligence claim in some situations in Washington. The plaintiff never pleaded reckless conduct on the part of the defendant so the plaintiff’s gross negligence claim was also denied.

Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.

So Now What?

Understanding the different slight subtlest between the various forms of assumption of the risk is difficult. Comparing them between states does nothing but create a confusing group of definitions that cross one another and at best confuse one another.

Better, set up a system to educate your guests or clients on the risks they may encounter. That time spent educating the guests can pay dividends both in keeping you out of court and keeping your guests happy and coming back.

What do you think? Leave a comment.

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Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Posted: August 27, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Paddlesports, Rivers and Waterways, Washington | Tags: Assumption of risk, comparative negligence, contributory negligence, Duty to Warn, encounter, fallen, fault, Gross negligence, Hazard, impliedly, Inherent Risks, Inner Tube, log, negligence claim, Outdoor, peril, Reckless, relieve, Rental, risks inherent, River, site, Sport, Strainer, Summary judgment, Survive, swift, tuber, Tubing, warn, Water Sports | 1 Comment

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Brian Pellham, Appellant, v. Let’s Go Tubing, Inc., et al., Respondents.

No. 34433-9-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

March 21, 2017, Oral Argument

June 27, 2017, Filed

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Superior Court: The Superior Court for Chelan County, No. 13-2-00663-9, Lesley A. Allan, J., on April 14, 2016, entered a summary judgment in favor of the defendants, dismissing all of the plaintiff’s claims.

Court of Appeals: Holding that the defendants did not have a duty to warn the plaintiff about the fallen log because the plaintiff assumed the risk of a fallen log and swift current by voluntarily participating in the activity, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Assumption of Risk — Sports — River Float — Assumed Risks — Fallen Trees — Swift Current. By voluntarily participating in a float on a wild river, one assumes the inherent risks of fallen trees in the water and a swift current. The assumption of risk may relieve the organizer of the activity of an actionable duty to warn about or to prevent injury from trees in the river.

[2] Negligence — Assumption of Risk — Sports — Nature of Assumed Risk. Assumption of risk in the context of participating in a sport is in reality the principle of no duty to warn of the hazards of the sport, in which case there can be no breach of duty and no actionable claim for negligence.

[3] Negligence — Duty — Necessity — In General. A cause of action for negligence will not lie absent the existence of a duty of care.

[4] Negligence — Assumption of Risk — Effect — Relief From Duty. The tort concept of duty overlaps with the contract and tort principles of assumption of risk. An assumption of risk can sometimes relieve a defendant of a duty.

[5] Negligence — Duty — Question of Law or Fact — In General. Whether a defendant owed a duty to a plaintiff is a question of law.

[6] Negligence — Assumption of Risk — Classifications. The term “assumption of risk” expresses several distinct common law theories, derived from different sources, that apply when one is knowingly exposed to a particular risk. The general rubric of assumption of risk does not signify a singular doctrine but, rather, encompasses a cluster of discrete concepts. The law recognizes four taxonomies of assumption of risk: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.

[7] Negligence — Assumption of Risk — Effect — In General. Express assumption of risk and implied primary assumption of risk operate as complete bars to a plaintiff’s recovery. Implied unreasonable assumption of risk and implied reasonable assumption of risk are merely alternative names for contributory negligence and merely reduce a plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and RCW 4.22.015.

[8] Negligence — Assumption of Risk — Express Assumption — What Constitutes — In General. Express assumption of risk arises when one explicitly consents to relieve another of a duty regarding specific known risks.

[9] Negligence — Assumption of Risk — Implied Primary Assumption — What Constitutes — In General. Implied primary assumption of risk follows from one’s engaging in risky conduct, from which the law implies consent.

[10] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Focus of Inquiry. Implied unreasonable assumption of risk primarily focuses on the objective unreasonableness of one’s conduct in assuming a risk.

[11] Negligence — Assumption of Risk — Implied Reasonable Assumption — What Constitutes. Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that one assumes a risk, but acts reasonably in doing so.

[12] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Implied Reasonable Assumption — Comparison. The gist of implied reasonable and implied unreasonable assumption of risk is that a defendant performed conduct that increased the risk of an activity or situation beyond the inherent risks thereof and the plaintiff reasonably or unreasonably encountered the increased risk. The categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar a plaintiff’s recovery.

[13] Negligence — Assumption of Risk — Inherent Peril — Risk of Activity — Assuming the Dangers. Inherent peril assumption of risk–also known as implied primary assumption of risk–bars a plaintiff’s claim resulting from specific known and appreciated risks impliedly assumed, often in advance of any negligence by the defendant. A plaintiff’s consent to relieve a defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves the known risks.

[14] Negligence — Assumption of Risk — Sports — Implied Assumption. One who participates in a sport impliedly assumes the risks inherent in the sport.

[15] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — In General. Under the theory of inherent peril assumption of risk, a plaintiff assumes the dangers that are inherent in and necessary to a particular activity. To the extent a risk inherent in a sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant does not have a duty to protect a sports participant from dangers that are an inherent and normal part of the sport.

[16] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — Water Sports. Inherent peril assumption of risk extends to water sports. One who engages in a water sport assumes the reasonably foreseeable risks inherent in the activity. This assumption of risk includes inner tubing on water. Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions in the water.

[17] Negligence — Assumption of Risk — Inherent Peril — Test. Inherent peril assumption of risk requires evidence that (1) the plaintiff possessed at least an understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk. In the usual case, a plaintiff’s knowledge and appreciation of a danger is a question of fact, but if it is clear that any person in the plaintiff’s position would have understood the danger, the issue may be decided by a court as a matter of law.

[18] Negligence — Assumption of Risk — Sports — Negligence Enhancing Assumed Risk. While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude recovery for the negligent acts of others that unduly enhance such risks.

[19] Negligence — Assumption of Risk — Inherent Peril — Limited Application. Inherent peril assumption of risk is the exception rather than the rule in assumption of risk situations.

[20] Negligence — Assumption of Risk — Increased Danger — What Constitutes. Increased danger assumption of risk–also known as implied unreasonable assumption of risk and implied reasonable assumption of risk–does not involve a plaintiff’s consent to relieve a defendant of a duty. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Increased danger assumption of risk involves a plaintiff’s voluntary choice to encounter a risk created by a defendant’s negligence. Increased danger assumption of risk arises when a plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. In such a case, the plaintiff’s conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.

[21] Negligence — Assumption of Risk — Increased Danger — Applicability. Increased danger assumption of risk does not apply in circumstances where the defendant did not create and could not remove the risk and where the plaintiff did not voluntarily take the risk because the plaintiff did not know the precise nature of the risk beforehand and lacked time to avoid the risk once it became apparent.

[22] Negligence — Assumption of Risk — Inherent Peril — Knowledge of Risk — Warning — Statements in Written Release — Sufficiency. A recitation in a release of liability warning of dangers inherent in an activity can be sufficient to notify a person of the risks of the activity that may give rise to inherent peril assumption of risk where the person chooses to engage in the activity and sustains injury from such dangers.

[23] Negligence — Assumption of Risk — Inherent Peril — Scope of Defense — Gross Negligence — Intentional or Reckless Conduct. Inherent peril assumption of risk in a sporting or outdoor activity may allow a defendant to avoid liability for gross negligence but not for intentional or reckless conduct. A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. An actor’s conduct is in “reckless disregard” of the safety of another if the actor intentionally does an act or fails to do an act that it is the actor’s duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to the other. Fearing, C.J., delivered the opinion for a unanimous court.

COUNSEL: Richard D. Wall (of Richard D. Wall PS), for appellant.

Kristen Dorrity (of Andrews o Skinner PS), for respondents.

JUDGES: Authored by George Fearing. Concurring: Kevin Korsmo, Laurel Siddoway.

OPINION BY: George Fearing

OPINION

[*403] ¶1 Fearing, C.J. — This appeal asks: does an inner tube rental company owe a duty to warn a renter about a fallen log in a river when the log is hidden from but near the launch site, the river’s current draws the tuber toward the log, the company knows of the fallen log, the company warns other tubers of the log, and the company chooses the launch site? To answer this question, interests such as exhilarating and uninhibited outdoor recreation, retaining the natural environment, and freedom to contract compete with cautious business practices, full disclosure of risks, and compensation for injury. Based on the doctrine of inherent peril assumption of risk, we answer the question in the negative. We affirm the trial court’s summary judgment dismissal of renter Brian Pellham’s suit for personal injury against the tube [**2] rental company, Let’s Go Tubing, Inc.

FACTS

¶2 Brian Pellham sues for injuries suffered while inner tubing on the Yakima River. Because the trial court dismissed Pellham’s suit on summary judgment, we write the facts in a light favorable to Pellham.

¶3 Melanie Wells invited Brian Pellham and his domestic partner to join her and three others on a leisurely unguided excursion floating the Yakima River. Wells arranged the expedition and reserved equipment and transportation from Let’s Go Tubing, Inc.

¶4 [*404] On July 30, 2011, Brian Pellham met the Wells party at the Let’s Go Tubing’s Umtanum gathering site, where additional tubers waited. Before boarding a bus, each participant signed a release of liability and assumption of risk form. Pellham felt rushed but read and signed the form. The form provided:

I, the renter of this rental equipment, assume and understand that river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other water craft, exposure to the elements, variations in water depth and speed of current, along with other structures and equipment, and many other hazards or obstacles exist in the river environment. In using the rental equipment or any facilities [**3] or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do occur and serious injuries or death may result and I assume full responsibility for these risks … . “IN CONSIDERATION FOR THIS RENTAL AND ANY USE OF THE FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS RENTAL EQUIPMENT.”

Clerk’s Papers at 46. On other occasions, such as a rafting trip, Brian Pellham has signed a waiver. In his business, he employs release forms.

¶5 Let’s Go Tubing launches its customers from the Umtanum site unless the Yakima River level runs low. With low water, the company buses customers to one of two other Yakima River sites, Big Horn or Ringer Loop.

¶6 On July 30, 2011, Let’s Go Tubing’s shuttle bus, because [**4] of a low river level, transported Brian Pellham, his group members, and other customers eight miles upstream [*405] to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom. The total number of customers on the excursion approached twenty. During transport, Steff Thomas, the Let’s Go Tubing bus driver, told Melanie Wells and a handful of others seated at the front of the bus to push into the middle of the river once they embarked, because a fallen tree obstructed the river immediately downriver but out of sight from the launch site. We do not know the number of customers the driver warned. Thomas did not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly Thomas, warned everyone not to leave the river except at designated spots because private owners own most of the riverbank.

¶7 At the launch site, Let’s Go Tubing handed each person a Frisbee to use as a paddle. Brian Pellham requested a life jacket, but Steff Thomas ignored him. Fifteen inner tubers entered the river first. Pellham and four others followed in a second group with their tubes tied together. They encountered a swift current. As soon as the flotilla of five rounded the [**5] first bend in the river, they saw a fallen tree extending halfway across the river. Many branches extended from the tree trunk. Each paddled furiously with his or her Frisbee, but the fleet of five inner tubes struck the tree. Brian Pellham held the tree with his left hand and attempted to steer around the tree. The current grabbed the inner tubes and Pellham fell backward into the river. The fall broke Pellham’s eardrum. The current forced Pellham under the tree and the water level. When Pellham resurfaced, his head struck a large branch. He sustained a whiplash injury. His chest also hit the branch.

¶8 Brian Pellham swam to shore and ended his river excursion. Pellham told Steff Thomas of his dangerous encounter, and the driver admitted he knew about the fallen tree but laws prevented Let’s Go Tubing from removing the obstacle.

[*406] ¶9 Brian Pellham later underwent a neck fusion surgery. The accident also caused damage to a low back disk, and the damage creates pain radiating to his left foot.

PROCEDURE

¶10 Brian Pellham sued Let’s Go Tubing for negligent failure to warn and Consumer Protection Act, chapter 19.86 RCW, violations. Let’s Go Tubing answered the complaint and raised affirmative defenses, including release of liability and [**6] assumption of the risk. The company filed a motion for summary judgment dismissal based on the release and on assumption of risk. In response to the motion, Pellham argued that he did not waive liability because Let’s Go Tubing committed gross negligence. He also argued he did not expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to dismissal of his consumer protection claim. The trial court granted summary dismissal of all of Pellham’s claims.

LAW AND ANALYSIS

¶11 On appeal, Brian Pellham contends the trial court erred in dismissing his claim because he presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion location, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed. On appeal, he does not argue liability against Let’s Go Tubing for failing to provide a life vest.

[1] ¶12 Let’s Go Tubing responds that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pellham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence. We affirm based on the inherent risks in river tubing. Because of Pellham’s [*407] voluntary participation in the outdoor recreation activity, he assumed the risk of a fallen log and swift current. Conversely, Pellham’s assumption of the risk created no duty for Let’s Go Tubing to warn Pellham of or prevent injury to him from trees in the river. Because we rely on the inherent risks in river tubing, we do not address whether the written agreement signed by Pellham bars his suit.

¶13 Because we hold that Brian Pellham assumed the risk and thereby rendered Let’s Go Tubing dutyless, we do not address whether Pellham created an issue of fact with regard to gross negligence. We conclude that, to avoid application of inherent peril assumption of risk, Pellham needed to show intentional or reckless misconduct of the rental company, and Pellham does not show or argue either.

Summary Judgment Principles

¶14 We commence with our obligatory recitation of summary judgment principles. [HN1] This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679, 683, 732 P.2d 510 (1987). [HN2] Summary judgment is proper if the records on file with the [**8] trial court show “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). [HN3] This court, like the trial court, construes all evidence and reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). [HN4] A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).

[*408] Defenses on Review

¶15 Let’s Go Tubing seeks affirmation of the summary judgment dismissal of Brian Pellham’s claim based on both an absence of duty and Pellham’s assumption of risk. In turn, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of duty because the company did not raise this defense before the trial court.

[2] ¶16 We need not address Brian Pellham’s objection to Let’s Go Tubing’s argument of lack of duty. We base our decision on inherent peril assumption of risk, and the rental company raised the defense of assumption of risk below. Anyway, assumption of risk in this context is equivalent to a lack of duty. [HN5] Assumption of the risk in the sports participant context is in [**9] reality the principle of no duty and hence no breach and no underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 401-02, 725 P.2d 1008 (1986).

Assumption of Risk

[3, 4] ¶17 [HN6] A negligence claim requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham must establish that Let’s Go Tubing owed him a duty of care. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). [HN7] The tort concept of duty overlaps with the contract and tort principles of assumption of risk. As previously mentioned, sometimes assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. at 402 (1986).

[5] ¶18 [HN8] The threshold determination of whether a duty exists is a question of law. Tincani v. Inland Empire Zoological [*409] Society, 124 Wn.2d at 128; Coleman v. Hoffman, 115 Wn. App. 853, 858, 64 P.3d 65 (2003). We hold that, because of Brian Pellham’s assumption of the risk of fallen trees in the water, Let’s Go Tubing, as a matter of law, had no duty to warn Pellham of the danger or, at the least, the rental company possessed only a restricted duty to not intentionally injure Pellham or engage in reckless misconduct.

[6] ¶19 We first briefly explore the variegated versions of assumption of risk in order to later analyze the application of inherent peril assumption of risk. [HN9] The term “assumption of the risk” expresses [**10] several distinct common law theories, derived from different sources, which apply when a plaintiff knowingly exposes himself to particular risks. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281 (2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 Harv. L. Rev. 14, 15-30 (1906); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987). Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010) (plurality opinion); Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P.3d 531 (2016); 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 9:11, at 398-99 (4th ed. 2013).

[7] ¶20 Before the enactment of comparative negligence and comparative fault statutes, practitioners and courts encountered little reason to distinguish the four versions of assumption of risk because at common law all assumption of the risk completely barred recovery. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). [*410] Today, [HN10] the first two categories of assumption of risk, express assumption and implied primary assumption, on the one hand, continue to operate as a complete bar to a plaintiff’s recovery. Kirk v. Washington State University, 109 Wn.2d at 453-54; Gleason v. Cohen, 192 Wn. App. at 794. On the other hand, implied unreasonable and implied [**11] reasonable assumption meld into contributory negligence and merely reduce the plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and .015. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497. The last two types are merely alternative names for contributory negligence. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636 (2010). Our decision relies on implied primary assumption, but we will discuss other renderings of assumption of risk in order to sculpt our decision.

[8-11] ¶21 [HN11] Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636; Kirk v. Washington State University, 109 Wn.2d at 453. [HN12] Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent. Kirk v. Washington State University, 109 Wn.2d at 453; Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). [HN13] Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk. Kirk v. Washington State University, 109 Wn.2d at 454. [HN14] Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so. Kirk v. Washington State University, 109 Wn.2d at 454.

[12] ¶22 We confront difficulty in distinguishing among at least three of the four categories because of the [**12] nondescript identifiers and near homophonic labels of some classifications. Therefore, we recommend that the Supreme [*411] Court rechristen the categories as express assumption, inherent peril assumption of risk, and increased danger assumption of risk. [HN15] The gist of implied reasonable and implied unreasonable assumption of risk is that the defendant performed conduct that increased the risk of an activity or situation beyond the risks inherent in the activity or situation and the plaintiff reasonably or unreasonably encountered this increased risk. The traditional categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar the plaintiff’s recovery, and so we urge combining the two concepts into increased danger assumption of risk. We hereafter use these new terms.

Inherent Peril Assumption of Risk

[13, 14] ¶23 We now focus on inherent peril assumption of risk. [HN16] Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497 (1992); Boyce v. West, 71 Wn. App. 657, 666-67, 862 P.2d 592 (1993). Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision [**13] to engage in an activity that involves those known risks. Egan v. Cauble, 92 Wn. App. 372, 376, 966 P.2d 362 (1998); Gleason v. Cohen, 192 Wn. App. at 797 (2016). [HN17] One who participates in sports impliedly assumes the risks inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Boyce v. West, 71 Wn. App. at 667.

[15] ¶24 [HN18] Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wn. App. at 797. The plaintiff assumes the dangers that are inherent in and necessary to a particular activity. Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 144 (1994); Scott v. Pacific West Mountain Resort, 119 Wn.2d at 500-01; Gleason [*412] v. Cohen, 192 Wn. App. at 797; Lascheid v. City of Kennewick, 137 Wn. App. 633, 641-42, 154 P.3d 307 (2007); Taylor v. Baseball Club of Seattle, LP, 132 Wn. App. 32, 37-39, 130 P.3d 835 (2006); Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996).

¶25 [HN19] The classic example of inherent peril assumption involves participation in sports when a participant knows that the risk of injury is a natural part of such participation. Gleason v. Cohen, 192 Wn. App. at 798. One who engages in sports assumes the risks that are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798.

[16] ¶26 [HN20] Inherent peril assumption extends to water sports. One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity. DeWick v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592, 594 (2000). This assumption of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App. 4th 472, 86 Cal. Rptr. 2d 547 (1999); Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing conditions in the water [**14] do not alter the assumption of risk. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory conditions. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594.

¶27 DeWick v. Village of Penn Yan, 275 A.D.2d 1011 is illustrative of the application of inherent peril assumption in the context of water. Trina Kerrick and Daniel DeWick [*413] drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake from the beach at Indian Pines Park, which was owned by defendant Village of Penn Yan. While wading in the water, she stepped from a sandbar where the lake bottom drops off and became caught in an undertow or current. DeWick drowned trying to save her. Neither could swim. The accident occurred on a hot day, four days before the beach officially opened for the season. The plaintiffs alleged that the village failed to warn specifically about the dangers of the drop-off and swift current. The court summarily dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk inherent in wading into a lake.

[17] ¶28 [HN21] Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily [**15] chose to encounter the risk. Kirk v. Washington State University, 109 Wn.2d at 453 (1987). The participant must know that the risk is present, and he or she must further understand its nature; his or her choice to incur it must be free and voluntary. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523. In the usual case, his or her knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his or her position must have understood the danger, the issue may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523; Keeton et al., supra, § 68, at 489.

¶29 [HN22] The rule of both express and inherent peril assumption of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk. Kirk v. Washington State University, 109 Wn.2d at 453. Depending on how specific the risk must be, this statement of the rule taken literally would abrogate the rule of inherent peril assumption because one rarely, if ever, anticipates the full particulars of an accident producing injury. One can never predict all of the variables that [*414] combine to cause an accident and injury. Also, the doctrine might not apply in wrongful death cases, because the judge or jury will lack evidence of the subjective understanding of the decedent. Washington courts’ applications of the rule suggest, however, that the plaintiff need only know [**16] the general nature of the risk. One case example is Boyce v. West, 71 Wn. App. 657 (1993).

¶30 In Boyce v. West, a mother brought a suit against a college and its scuba diving instructor after the death of her son, who died during a scuba diving accident while engaging in the college course. The mother claimed the instructor negligently taught and supervised her son. The son, Peter Boyce, signed a document acknowledging the possibility of death from scuba diving and assuming all risks in connection with the course, whether foreseen or unforeseen. This court affirmed summary judgment dismissal of the claims against the school and the instructor. The court reasoned that negligent instruction and supervision are risks associated with being a student in a scuba diving course and were encompassed by the broad language of the contract. Although Peter may not have specifically considered the possibility of instructor negligence when he signed the release, this lack of consideration did not invalidate his express assumption of all risks associated with his participation in the course. [HN23] Knowledge of a particular risk is unnecessary when the plaintiff, by express agreement, assumes all risks.

¶31 Boyce v. West entails express assumption of [**17] risk, but [HN24] the same rule of subjective knowledge of risk applies to both express assumption and inherent peril assumption. Based on Boyce v. West and cases involving water sports, we hold that Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any [*415] fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river. He had more reason to know of the dangers that caused his injury when he started his excursion than Peter Boyce had reason to know of the risks that led to his death when Boyce signed his college course form. In the setting of inherent peril assumption, New York courts have ruled that, [HN25] if the participant fully comprehends the risks of the activity or if those risks are obvious or reasonably foreseeable, he or she has consented to those risks and the defendant has performed its duty. Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d at 938 (2016); Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).

[18] ¶32 [HN26] While participants in sports are generally held to have impliedly assumed the risks [**18] inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 501; Gleason v. Cohen, 192 Wn. App. at 798. This principle leads us to a discussion of increased danger assumption.

[19] ¶33 [HN27] Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages. Barrett v. Lowe’s Home Centers, Inc., 179 Wn. App. 1, 6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the line between these two types of assumption of risk. Gleason v. Cohen, 192 Wn. App. at 795; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. at 425-26 (1996). A rigorous application of inherent peril assumption of risk could undermine the purpose of comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 455-56. Significantly, [HN28] inherent peril assumption is the exception rather than the rule in assumption of risk situations.

[20] ¶34 [HN29] Increased danger assumption of risk does not involve a plaintiff’s consent to relieve the defendant of a [*416] duty. Gleason v. Cohen, 192 Wn. App. at 796. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Gleason v. Cohen, 192 Wn. App. at 796. Specifically, increased danger assumption involves the plaintiff’s voluntary choice to encounter a risk created [**19] by the defendant’s negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499; Gleason v. Cohen, 192 Wn. App. at 796. Increased danger assumption of risk arises when the plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499 (1992); Gleason v. Cohen, 192 Wn. App. at 798. In such a case, a plaintiff’s conduct is not truly consensual but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk. Gleason v. Cohen, 192 Wn. App. at 796.

¶35 Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 927 P.2d 1148 (1996) presents a good illustration of increased danger assumption of risk. Michael Dorr entered a forest where his friend John Knecht cut trees. Dorr knew of the phenomenon of “widow-makers,” large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed the risk of “widow-makers,” Knecht’s misleading directions led to implied unreasonable or secondary assumption of risk. The jury could still find and did find Dorr comparatively at fault for proceeding with the knowledge of “widow-makers,” but Dorr’s fault would be compared with Knecht’s fault. The negligence of Knecht [**20] arose after Dorr entered the forest.

[21] ¶36 Brian Pellham alleges that Let’s Go Tubing was negligent by reason of sending him and others on inner tubes in fast moving water with a downed tree in the middle [*417] of the water without warning to the tuber. Let’s Go Tubing did not create the risk and could not remove the risk. Although Pellham knew of the risks of logs and current, Pellham did not know of the precise risk when he first encountered it. When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.

¶37 Let’s Go Tubing performed no act that created the swift current or felled the log into the water. [HN30] The cases that decline application of inherent peril assumption involve a positive act of the defendant, such as the implanting of a post or snow shack adjacent to a ski run. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Brown v. Stevens Pass, Inc., 97 Wn. App. at 521 (1999).

¶38 One might argue that Let’s Go Tubing’s failure to warn increased the risk attended to the fallen log in the Yakima River. [HN31] A defendant may be held liable when a reasonable person would customarily [**21] instruct a plaintiff in respect to the dangers inherent in an activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a defendant may be held liable if the plaintiff alleges that a reasonable person would customarily warn, advise, inform, and instruct regarding the risk of injury to participants and the manner in which such risks could be minimized and their failure to do so caused the plaintiff’s injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Brian Pellham presents no evidence that those who rent out watercrafts customarily warn of fallen natural objects in the water.

[22] ¶39 The document signed by Brian Pellham contained terms in addition to releasing Let’s Go Tubing from liability. In the instrument, Pellham also recognized that the hazards of river tubing included the existence of rocks, logs, plants, and variations in water depth and speed of [*418] current. Pellham agreed to assume full responsibility for all risks involved in river tubing, including serious injuries and death resulting from the hazards. Although we do not base our holding on express assumption of risk, we note that the release’s recitation of dangers warned Pellham of the inherent perils attended to inner tubing and those dangers that led to Pellham’s injuries.

Gross Negligence

¶40 Brian Pellham argues that the waiver [**22] form he signed does not bar a claim for gross negligence. The parties, in turn, devote much argument to the issue of whether Pellham creates a question of fact as to gross negligence. Since we do not rely on express assumption of risk, we need not directly address this argument. Instead, we must ask and answer whether a tuber may overcome the defense of inherent peril assumption of risk by showing gross negligence by the inner tube rental company.

¶41 [HN32] When inherent peril assumption of risk applies, the plaintiff’s consent negates any duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498 (1992); Gleason v. Cohen, 192 Wn. App. at 798 (2016). Based on this premise of inherent peril assumption, the defendant should avoid liability for gross negligence. Gross negligence constitutes the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting from inherent peril assumption should extend to an absence of any obligation to exercise slight care.

¶42 At the same time, [HN33] gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk. [**23]

¶43 No Washington case directly holds that a claim for gross negligence survives the plaintiff’s express assumption [*419] of risk. Nevertheless, in at least two decisions, Washington courts assumed that a gross negligence cause of action endured. Boyce v. West, 71 Wn. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not argue gross negligence. Other jurisdictions have held that express assumption of risk does not bar a claim for gross negligence since public policy does not allow one to exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630 (2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).

¶44 [HN34] Since express assumption of risk and inherent peril assumption of risk both result in the bar of the plaintiff’s claim and arise from the plaintiff’s voluntary assumption of risk, one might argue that a gross negligence claim should survive assumption of risk by inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of assumption of risk promote different interests and raise disparate concerns. A signed assumption of all risks could be the result of unequal bargaining power and apply to activities that involve little, or no, risks. The bargaining [**24] power with regard to inherent peril assumption is immaterial. Assumption follows from hazards the plaintiff voluntarily assumes because of the thrill and enjoyment of an activity.

[23] ¶45 We find no foreign decisions in which the court holds that a cause of action for gross negligence survives the application of inherent peril assumption of risk in the context of sports or outdoor recreation. Instead, other courts addressing the question consistently [HN35] limit the liability of the defendant, when inherent peril assumption applies, to intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R.T.A., 2014-Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town of Amherst, 20 N.Y.3d 83, [*420] 980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts of America, 397 S.C. 247, 725 S.E.2d 476, 478 (2011); Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011); Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App. 4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314, 642 N.W.2d 426, 428 (2001); Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1365 (Ct. App. 1997); Savino v. Robertson, 273 Ill. App. 3d 811, 652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995); King v. Kayak Manufacturing Corp., 182 W. Va. 276, 387 S.E.2d 511, 518 (1989). A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428 (2001). We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.

¶46 [HN36] Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d at 331 (1965). Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally [**25] does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her. Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d 461 (1953); Brown v. Department of Social & Health Services, 190 Wn. App. 572, 590, 360 P.3d 875 (2015). Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.

[*421] CONCLUSION

¶47 We affirm the trial court’s summary judgment dismissal of Brian Pellham’s suit against Let’s Go Tubing.

Korsmo and Siddoway, JJ., concur.

LexisNexis Practice Guide: Washington Torts and Personal Injury

LexisNexis Practice Guide: Washington Trial and Post-Trial Civil Procedure

Annotated Revised Code of Washington by LexisNexis

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Posted: June 19, 2017 | Author: Recreation Law | Filed under: Uncategorized | Tags: Animal, Assumption of risk, broken, counter, entity, enumerate, Equine, Equine Liability Act, exculpatory, Exculpatory clause, faulty, genuine, Happy Trails and Riding Center, Horse, horseback riding, Immunity, Inc., Inherent Risk, material fact, recklessness, recreational, Rental, ride, rider, riding, Ski, Skier, skiing, Sport, stable, stirrup, Summary judgment, Trail | 1 Comment

Between a poorly written release, an Equine statute that requires proof the rider assumed the risk and the “cavalier” attitude of the defendant; the plaintiff will proceed to trial.

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

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

Plaintiff: Wilberto Melendez

Defendant: Happy Trails and Riding Center, Inc.

Plaintiff Claims: Negligence and Recklessness

Defendant Defenses: Release and Pennsylvania Equine Liability Protection Act

Holding: For the plaintiff

Year: 2016

The plaintiff was part of a group ride. Upon arrival he was told, he had to sign a release which he did. At the office where the plaintiff signed, the release signs were posed as required by the Pennsylvania Equine Activities Immunity Act. During the ride, the plaintiff asked the guides if he could gallop the horse and was told no several times. Eventually at the end of the ride, the plaintiff was allowed to gallop his horse.

Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail. At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

While galloping the horse, the stirrup broke causing the plaintiff to fall incurring injuries.

The defendant filed a motion for summary judgment based on the release signed by the plaintiff and the Pennsylvania Equine Activities Immunity Act. The court denied the motion because the issue of the stirrup breaking could be considered reckless under Pennsylvania law.

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

The decision first looks at releases or exculpatory agreements under Pennsylvania law.

Under Pennsylvania, the language of the release must be clear in relieving notifying the possible plaintiff, he or she is releasing the defendant of negligence. “However, a valid exculpatory clause will nevertheless, be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”

As in most states, releases are not favored and must conform to contract law. However, the term “not favored” is a term of art rather than a term used to determine if the release will be valid.

Contracts immunizing a party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.”

In that regard Pennsylvania, courts have set up standards on how releases will be governed.

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by ex-press stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

As in most other states, Pennsylvania does not allow a release to relieve a defendant for intentional or reckless acts. “Further, exculpatory clauses may not immunize a party for intentional or reckless behavior.”

The plaintiff did not argue that the release was not valid. The court reviewed the release on its own and find it valid.

First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them.

Second, the agreement was between two private parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

The court also found Pennsylvania law allowed the use of releases for inherently dangerous activities. Horseback riding in Pennsylvania is an inherently dangerous activity.

The plaintiff’s argument centered on the inherent risks of horseback riding. Inherent, a limiting word, defines the risks that are part of horseback riding no matter what. Inherent risks are part of horseback riding and can rarely be reduced or modified by someone because of the horse. However, there are more than just inherent risks in any activity and the plaintiff argued that a stirrup breaking was not an inherent risk and not covered by the release or the statute.

How the bridle or saddle is attached to the horse is under the control of the stable, thus not an inherent risk of horseback riding in must states. How the horse responds; maneuvers or acts is an inherent risk of riding a horse.

Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment.

Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could not appreciate the risk and could therefore not assume it.

(For other articles on the use of “inherent” in a release see: Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release and 2015 SLRA – Inherent Risk: Should the Phrase be in your Release?)

The court looked at the issue and rephrased it to a contract analogy. A contract must state the intention of the parties. A release is a contract.

…the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before.

The court then looked at the issue and found that defective equipment was not an inherent risk of horseback riding. This means if you use the term “inherent risk” in your release to describe all of the risks, claims based defective equipment would not be covered by your release in Pennsylvania. However, the release in this case was written broadly so it was not an issue.

Pennsylvania courts have held that a release protects against claims for inherent as well as non-inherent risks if written to include those risks, and this release was written broadly.

The plaintiff argued the release should be read narrowly because the release did not identify defective equipment as a risk to be covered. However, the court found that every risk needs not be reviewed or identified in a release.

The next point the plaintiff argued was the actions of the defendant amounted to recklessness and as such voided the release. The court defined recklessness under Pennsylvania law as:

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”

Pennsylvania uses the term recklessness to define acts of the defendant that exceed the scope of a release. The majority but not all states use the term gross negligence.

This argument the court did accept. The court found that it was the defendant’s responsibility to inspect the equipment, and the defendant could not provide any evidence of any inspection.

The court on this same topic went on looking at the facts to determine other reckless acts of the defendant. In that review, the court added a comment about the attitude of the defendant/owner of Happy Trails and described his attitude as “cavalier.”

He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness

Finding a lack of knowledge about the age or condition of the defendant’s equipment, no record of inspecting or maintaining the equipment and the attitude of the defendant allowed the court to reach a conclusion that the actions of the defendant would be found by a jury to be reckless. As such, a motion for summary judgment could not be granted if there were “genuine dispute as to any material fact.”

The next issue was the application of the Pennsylvania Equine Activities Immunity Act to the case. The court could find no other case law in Pennsylvania that looked at the application of the Pennsylvania Equine Activities Immunity Act to defective equipment. Consequently, the court had to interpret the statute to see if the language of the statute covered defective equipment.

The Pennsylvania Equine Activities Immunity Act like most equine liability protection acts provides immunity to horse owners, stables, etc., for the actions of the animals. (Since Equine Acts have been created, they have been 100% effective. No horses have been sued. Lawsuits against horse owners have increased.) However, the Pennsylvania statute places a burden on the stable or horse owner to prove knowledge of the risk for the immunity to apply.

Most equine protection acts are written to say that when on a horse, or at places where horses, llamas, mules, etc., are, you assume the risk of the actions of the animal. By assuming the risk, the defendant owner is immune from liability for the plaintiff’s injuries. The Pennsylvania statute is different. The Pennsylvania statute states “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.”

This requirement puts a burden upon the horse owner to provide additional education to the rider.

The court looked at the definition of assumption of risk as defined in the Restatement of Torts, which found four different definitions or as the Restatement defines them doctrines of assumption of the risk.

The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.”

The first type of assumption of risk the court found that applied here was express assumption of risk. Express assumption of risk occurs when the plaintiff has consented to the risk. Usually, this consent is given by writing, if written property as part of a release.

The second type applicable in this case was implied assumption of the risk. Implied assumption of the risk has no exactness to the risk assumed. The plaintiff knows there is risk, and the defendant hopes the plaintiff knows of the explicit risk that may injure the plaintiff or that caused the plaintiff’s injuries. If the plaintiff had no knowledge of the risk, then the plaintiff cannot assume the risk.

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”

In this case, there was no evidence that the plaintiff knew of the risk. That risk was of equipment failure that the stirrup would break. Consequently, the plaintiff could not assume the risk.

Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.”

Because the risk that injured the plaintiff was outside of the risks assumed by the plaintiff, the defense of assumption of the risk did not apply. As such, the Pennsylvania Equine Activities Immunity Act did not provide the defendant with any protection.

With the release not valid and the Pennsylvania Equine Activities Immunity Act not providing any protection both defenses of the defendant failed. The defendant’s motion for summary judgment was denied.

So Now What?

This case would not have meant anything if the plaintiff had simply fallen off the horse. Both the release and the Pennsylvania Equine Activities Immunity Act would have prevented recovery if a claim had even been made.

But broken equipment always creates a different issue. Here it created an issue of whether the actions of the defendant were reckless and proved the plaintiff did not assume the risk.

Another important issue is courts put into their decision the facts they find persuasive or at least interesting. There were several facts in the decision that did not alter or affect the decision on its face, but important enough for the court to identify them anyway. I always find these facts as instructional and a good indication of something that was not enough for the judge to argue but important anyway.

I also believe that they may not have any legal value, but if written into the decision by the judge, they had to have an impact on the judge’s thinking, and consequently, those issues did affect the outcome of the case.

In this decision those facts included:

After his group arrived, Plaintiff went into the stable’s office to register. Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part….

Combined with the next sentence:

An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. Plaintiff signed the agreement.

Meaning, the plaintiff was not told in advance he was going to be required to sign a release.

Another one was the plaintiff being told galloping was too dangerous yet he was eventually allowed to gallop his horse.

On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail.

Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

If galloping the horse was too dangerous earlier, what changed? More importantly, galloping the horse led to the broken stirrup which led to the injury.

And then there are the straight out in your face statements a court rarely makes.

Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal.

If this statement or something like it has been at the beginning, you would have known immediately that the defendant was going to lose. Never walk into a courtroom looking like the bad guy and never give the court proof, such as this, that you are.

For other Equine Liability Act articles see:

$1.2 M award in horseback riding fatality in Wyoming http://rec-law.us/1fE4ncB

$2.36 M awarded to boy kicked by horse during inner-city youth program http://rec-law.us/1lk7cTP

A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident. http://rec-law.us/SJZCkU

Decisive Supreme Court Decision on the Validity of Releases in Oklahoma http://rec-law.us/19gxvkT

Equine laws stop suit against horse, outfitter still sued http://rec-law.us/XjgJvw

Good News ASI was dismissed from the lawsuit http://rec-law.us/131HKWH

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release http://rec-law.us/1nvfCV5

Hawaii’s deceptive trade practices act sends this case and release back to the trial court http://rec-law.us/Z3HdQj

Indiana Equine Liability Statute used to stop litigation http://rec-law.us/12UFp1N

Lying in a release can get your release thrown out by the court. http://rec-law.us/11ysy4w

Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant http://rec-law.us/1ZicaQs

Parental control: should you, are you accepting responsibility for kids and when you should or can you not. http://rec-law.us/1fteMth

Release saves riding school, even after defendant tried to show plaintiff how to win the case. http://rec-law.us/14DC7Ad

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Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Posted: June 6, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: Animal, Assumption of risk, broken, counter, entity, enumerate, Equine, Equine Liability Act, exculpatory, Exculpatory clause, faulty, genuine, Happy Trails and Riding Center, Horse, horseback riding, Immunity, Inc., Inherent Risk, material fact, recklessness, recreational, Rental, ride, rider, riding, Ski, Skier, skiing, Sport, stable, stirrup, Summary judgment, Trail | Leave a comment

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity

COUNSEL: [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.

For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.

1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2] Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”

The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.

II. Statement of Undisputed Facts

In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:

Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:

AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:

IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3] OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.

….

1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.

1. [sic] The nature of the activity itself, including the possible risks to you the rider.

A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.

B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4] times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.

C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.

D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.

2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.

3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5] against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.

….

4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….

….

6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.

(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6] the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).

After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).

Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).

III. Standard of Review

Through summary adjudication, the court may dispose of those [*7] claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8] should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. Analysis [*9]

Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).

A. Exculpatory Agreement

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10] party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.

Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11] claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).

Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).

Second, the agreement was between two private [*12] parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13] not appreciate the risk and could therefore not assume it. (Id. at 13).

Plaintiffs argument essentially states that the second element from Tayar –that “the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.

In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14] Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.

Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15] final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.

As for enforceability of the agreement, in the realm of recreational [*16] activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).

Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17] Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2

2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds [*18] Zimmer v. Mitchell and Ness instructive.

In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.

Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19] agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3

3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20] fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.

Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar, 47 A.3d at 1200.

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [*21] man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22] safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.

Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).

Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that

Cody Kemble’s negligence consisted of the following:

a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;

b. failing to assure that Robert Archibald was willing [*23] to be checked;

c. checking Robert Archibald when not safe to do so;

d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.

Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).

Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24] Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.

In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.

B. Equine Activities Immunity Act

Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25] protections. (Doc. 22 at 4).

The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).

The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26] involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.

Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27] equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).

The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28] entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).

4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29] the risk is not conclusive.

There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.

Restatement (Second) of Torts §496D cmt. d.

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30] the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.

Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5

5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.

V. Conclusion

For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31] THAT:

1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.

2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

Plaintiff signed two releases and wanted them both thrown

Posted: November 25, 2013 | Author: Recreation Law | Filed under: California, Release (pre-injury contract not to sue) | Tags: California, Release, Rental, Ultra Light, Ultralight | Leave a comment

She also argued the weaker one should prevail if one had too.

Powers v. The Superior Court Of Sacramento County, 196 Cal. App. 3d 318; 242 Cal. Rptr. 55; 1987 Cal. App. LEXIS 2330

Plaintiff: Dixie Hoffman and Gerald Hoffman, et al., (identified as defendant for the appeal)

Defendant: Richard Powers (identified as plaintiff on the appeal)

Plaintiff Claims: negligence, personal injuries, emotional distress, and loss of consortium

Defendant Defenses: Release

Holding: Both releases are valid

The plaintiff rented an ultralight from the defendant. For the rental, she signed two different releases. During take-off, the ultralight engine failed, and she crashed into a stack of bailed hail. The plaintiff sued.

The defendant argued the releases should be enforced, and the lawsuit dismissed. The plaintiff argued the language in the less inclusive release was the only one that should be applied. The defendant asked for the case to be dismissed. The trial court denied both motions. The parties then petitioned the appellate court to intervene and resolve the issue. The appellate court ordered the trial court to decide the issue. The trial court ruled dual releases voided each other, and neither could be used. Defendant then appealed the trial court ruling.

This also explains why the heading is the defendant at the trial court level being listed as the plaintiff at the appellate level. The defendant is the trial court. The plaintiffs are listed as the real parties in interest.

One of the releases was labeled “Waiver and Release From Liability and Indemnity Agreement.” The second release was identified as “Aircraft Rental and Student Instruction Agreement and Release from Liability.” The court stated both releases are “in a standard-size type, easily legible, with no fine print.”

Summary of the case

The plaintiff argued that the case of Conservatorship of Link, (1984) 158 Cal.App.3d 138, 205 Cal.Rptr. 513, should control because it had similar facts. Two releases were signed by the plaintiff. The first to enter the race track and the second release was signed to enter the pit area. The court threw out one of the releases because the print was in five-and-one-half-point type, too small to be read. The exculpatory language was hidden and convoluted.

The Link court throughout the second release because under California law the second “sign-in sheet release insufficiently clear, explicit and free from ambiguity to be enforceable.” The Link court went on to state “”[defendants’] use of two release agreements framed in different language created an ambiguous, confusing situation which must be resolved against defendants.”

Here the court found the two releases were both written correctly to meet California law on releases.

Neither the “Waiver and Release From Liability and Indemnity Agreement” (Appen. A) nor the “Aircraft Rental and Student Instruction Agreement and Release From Liability” (Appen. B) signed by plaintiff suffers from any of the defects relied upon by the Link court to void the exculpatory language found on the sign-in sheet considered in that case.

The court directed the trial court to set aside its order for the plaintiff. The defendant did not win outright though. The appellate court held that the defendant had asked for additional relief that it could not grant, because the trial court had not ruled on those issues.

So Now What?

As more and more operations use releases, this is going to become a common occurrence. A church group requires people going on a trip to sign a release. The raft company the church group goes to, asks the people to sign a release. If someone is injured, then you could be facing this same argument.

About the only way to deal with this situation is to work in advance and make sure that your documents either solely identify you as the person to be released or both parties make sure their releases do not conflict.

If you can, identify one release that is the best and use it.

If you are using two releases; Stop. Either figure out a way to combine the documents or make sure that one document does not eliminate the other or both documents.

There may be language you can use in your release to make sure it is superior to any other release or contract. However, if both releases have the language, then you are back in the same quandary.

What do you think? Leave a comment.

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Recreation Law

It's not what I write, It's what you Learn

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

Stand Up Paddleboard case. Rental company not liable for death of renter who could not swim.

Kabogoza v. Blue Water Boating, Inc., et al.,

You can collect for damaged gear you rented to customers if your agreements are correct. This snowmobile outfitter recovered $27,000 for $220.11 in damages.

Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514

Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

To prove gross negligence under Washington State law you have to show intentional or reckless misconduct. Assumption of the risk prevents river tuber for suing for his injuries hitting a strainer.

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Between a poorly written release, an Equine statute that requires proof the rider assumed the risk and the “cavalier” attitude of the defendant; the plaintiff will proceed to trial.

What do you think? Leave a comment.

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Plaintiff signed two releases and wanted them both thrown

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Between a poorly written release, an Equine statute that requires proof the rider assumed the risk and the “cavalier” attitude of the defendant; the plaintiff will proceed to trial.

What do you think? Leave a comment.

Rate this:

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35 Years of Outdoor Retailer

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

If you want to book an appointment?

Outdoor Recreation Risk Management, Insurance & Law

My New Book: Boating the Grand Canyon: A “How To” for Private Boaters

Enter your email address to follow this blog and receive notifications of new posts by email.

James H. Moss, J.D.

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Follow Blog via Email

Follow on Twitter

Categories: by Activity, State & Legal Issue

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