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Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it

Plaintiff successfully argued he did not have enough time to read the release before he signed it. The court bought it.

DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235

State: Connecticut, Superior Court of Connecticut, Judicial District of New Haven at New Haven

Plaintiff: Guy DeWitt, Jr.

Defendant: Felt Racing, LLC and Pedal Power, LLC 

Plaintiff Claims: no time to read the release, not told he needed to sign a release

Defendant Defenses: Release

Holding: for the plaintiff 

Year: 2017 

Summary

This case looks at demoing a bike in Connecticut. The rider/plaintiff argued that he did not have enough time to read the release, and the bike shop was chaotic creating confusing for him. He was injured when the handlebars broke causing him to fall. 

Facts

The plaintiff participated in the Wednesday night right put on by Pedal Power, LLC, one of the defendants. That night Pedal Power made arrangements for people to demo Felt Bicycles. Most people did so and sent their information to Felt Racing so the bikes were fit and ready to go when they arrived.

The plaintiff arrived with his own bike. However, once he got there he decided to demo a felt. While the bike was being fitted for him, he was handed a release to sign. The plaintiff stated the place was chaotic, and he did not have time to read the release. 

During the ride, the handlebar failed or cracked causing the plaintiff to fall and hit a tree.

What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic and rushed there What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic and rushed there to make the ride. I just did not have the time to read that . . .” Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride. to make the ride. I just did not have the time to read that . . .” Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride.

 The defendants filed a motion for summary judgment, and this was the analysis of the motion by the court. 

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

Each state has its own requirements for when a court can grant a motion for summary judgment. The court in this case set forth those requirements before starting an analysis of the facts as they applied to the law.

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be
tried. Practice Book section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”

Most states apply similar standards to deciding motions for summary judgment. The major point is there is no genuine issue of fact’s material to the case. Meaning no matter how you look at the facts, the motion is going to win because the law is clear.

Additional statements in the case indicated the court was not inclined to grant any motion for summary judgment.

“Summary judgment is particularly ‘ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . . [T]he conclusion of negligence is necessarily one of fact . . .”

“The courts hold the movant to a strict standard. To satisfy [their] burden the movant[s] must make a showing that it is clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact, the nonmoving party has no  obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”

The court then analyzed the entire issue of why summary judgments are rarely granted in this judge’s opinion.

“[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” “Thus, it is consistent with public policy ‘to posit the risk of negligence upon the actor’ and, if this policy is to be abandoned, ‘it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not shift the risk to the weak bargainer.’

The writing on the wall, or in the opinion, makes it pretty clear this judge was not inclined to grant motions for summary judgment in tort cases when the risk of the injury would transfer to the plaintiff.

The court then reviewed the requirements of what is required in a release under Connecticut law. 

…requirements for an enforceable agreement as well as the elements which demonstrate that an agreement violates public policy and renders the agreement unenforceable: the agreement concerns a business of a type suitable for regulation; the party seeking to enforce the agreement is engaged in performing a service of great importance to the public; the party holds itself out as willing to perform a service for any member of the public; there is an economic component to the transaction; the agreement is an adhesive contract; and as a result of the transaction, the plaintiff is placed under the control of the seller. 

Nowhere in the requirements does it state a requirement that the plaintiff have enough time to read the release, even if did go ahead and sign the release. 

The language quoted sounds like similar language found in other decisions in other states regarding releases. 

Connecticut also requires “that in order for an exculpatory clause to validly release the defendant, it must be clear and
contain specific reference to the term “negligence
.” 

In this release, the term negligence is only found once. 

The plaintiff argued that he did not have time to sign the release, and the place was chaotic. This was enough for the court to say there were material facts at issue in this case. “If the plaintiff was not afforded the opportunity to read and consider the Waiver and Release, then the agreement cannot be enforced. It is for the trier of fact to determine this.”

The defendants created the conditions under which the plaintiff could participate in the ride on a Felt bicycle. Enforcement of an agreement requiring the plaintiff to assume the risk of the defendants’ actions when there is a question of fact regarding whether the plaintiff had been given sufficient time to read and consider the Waiver and Release, would violate public policy, even if the language of the agreement was explicit and clear. For this reason, this court denies the defendants’ motions for summary judgment.

The motion for summary judgment was denied. 

So Now What? 

This is the first time I have read a decision where the claim there was not enough time to read the release was upheld by a court. Normally, the court states if the release is signed the signor read and agreed to the terms.

This is one more argument that will eliminate releases in Connecticut. There have been several already, and although there are several decisions that support releases, there is a growing list of decisions that are providing opportunities for the courts to throw them out. 

The final issue to be aware of is the language in this case is identical to language in most other release cases. However, here that language was used to throw out a release rather than support it.

Other Connecticut Decisions Involving Releases

Connecticut court works hard to void a release for a cycling event

Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and  spinning hold send climbing wall gym back to trial in Connecticut.

Connecticut court determines that a release will not bar a negligent claim created by statute.

What do you think? Leave a comment.

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bike, ride, summary judgment, public policy, relieve,
bicycle, quotation marks omitted, disputed, participating, chaotic, riding,
custom, rider, tort law, moving party, entitled to judgment, nonmoving party,
question of fact, primary function, exculpatory, unambiguous, genuine, movant,
entities, sufficient time, sponsored, pre-sized, arranged, sponsors, borrow,
Felt Racing, LLC, Pedal Power, LLC, Products Liability, Release,

 

 

 

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DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235

DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235

Guy DeWitt, Jr. v. Felt Racing, LLC et al.

CV136040482

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN

2017 Conn. Super. LEXIS 235

February 6, 2017, Decided

February 6, 2017, Filed

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

CORE TERMS: bike, ride, summary judgment, public policy, relieve, bicycle, quotation marks omitted, disputed, participating, chaotic, riding, custom, rider, tort law, moving party, entitled to judgment, nonmoving party, question of fact, primary function, exculpatory, unambiguous, genuine, movant, entities, sufficient time, sponsored, pre-sized, arranged, sponsors, borrow

JUDGES: [*1] Angela C. Robinson, J.

OPINION BY: Angela C. Robinson

OPINION

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENTS #149 AND #150

Guy DeWitt, Jr., the plaintiff, claims that on June 18, 2013, he was injured as a direct result of the negligence and/or actions of the defendants, Felt Racing, LLC and Pedal Power, LLC, in violation of the products liability statute. At the time of the incident, the plaintiff was participating in a group ride of bicyclists that was sponsored by Pedal Power. During the ride, at the time he was injured, the plaintiff was riding a bike he borrowed from Felt Racing. Prior to participating in the ride, and before he was allowed to borrow the Felt bike, the plaintiff signed a Waiver and Release.

The defendants both now move for summary judgment based upon the Waiver and Release, which they argue releases them from all liability. The plaintiff objects to the defendants’ motion claiming that the language of the Release and Waiver does not sufficiently relieve the defendants of liability; and that it violates public policy.

Most of the facts pertinent to the resolution of the motion are not in dispute. Pedal Power sponsored a group ride in Middletown, Connecticut. Felt Racing arranged [*2] to have a Felt bicycle demonstration at the Pedal Power store, and brought 35 Felt bikes to loan out for the ride. The plaintiff had brought his own bike to ride during the activity, but decided to try a Felt bike. The plaintiff was provided with a Felt AR2, which was selected and custom fit to him by a Felt employee. He had not arranged to ride the bike ahead of time. According to Mr. Rudzinsky, Certified USA Cycling Professional Mechanic and agent of Felt Racing, the plaintiff was not one of “the guys that was pre-sized . . .” Rather, “he showed up late.” (Rudzinsky Depo p. 57.) In order to borrow the bike, the plaintiff signed a Waiver, provided a copy of his driver’s license and left his personal bike as collateral. As the plaintiff was riding the Felt AR2 eastbound on Livingston Street in Middletown, Connecticut the right side of the handle bars failed and/or cracked, ejecting him off the bike and causing him to violently hit the ground and collide with a tree.

What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic [*3] and rushed there to make the ride. I just did not have the time to read that . . .” (Deposition of Plaintiff attached to Plaintiff’s Objection.) Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride.

The defendants request that judgment enter in their favor on the plaintiff’s complaint based upon the Release and Waiver.

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).

“Summary [*4] judgment is particularly ‘ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . . [T]he conclusion of negligence is necessarily one of fact . . .” Michaud v Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

“The courts hold the movant to a strict standard. To satisfy [their] burden the movant[s] must make a showing that it is clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Zielinski v Kotsoris, 279 Conn. 312, 318-9, 901 A.2d 1207 (2006).

The defendants claim to be entitled to judgment because the Waiver contains language transferring all the risks of participating in the group ride from Felt Bicycles, and sponsors of the ride to the participant rider borrowing the Felt bike. Specifically, the Waiver provides:

I HEREBY WAIVE, RELEASE, DISCHARGE, AND COVENANT NOT TO SUE Felt Bicycles, Felt Racing, or its . . . agents . . . members, volunteers and employees, and/or other participants, sponsors [*5] . . . and/or where applicable, owners and lessors or (Sic) premises on which the Event takes place . . . from liability, claims, demands, losses or damages.

Though term “negligence” appears only once in the waiver, in paragraph 1, the defendants maintain that this is not determinative of their motion regarding the negligence claims. Further, the defendants argue that the language of the waiver sufficiently covers the actions of the agents and/or employees of Felt, LLC and Pedal Power, LLC, as well as the legal entities, themselves.

To support their arguments, both the defendants and the plaintiff rely primarily upon Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734, (2005). The plaintiff also cites and relies upon Hyson v. White Water Mountain Resorts of Connecticut, 265 Conn. 636, 829 A.2d 827 (2003); Lewis v. Habitat for Humanity of Greater New Haven, Superior Court, Judicial District of New Haven, docket no. CV 095030268 (January 9, 2012, Frechette, J.) [53 Conn. L. Rptr. 512, 2012 Conn. Super. LEXIS 146]; Kelly v. Deere & Co, 627 F.Sup. 564 (D.C. 1986).

In Hanks v. Powder Ridge Restaurant, Corp, the Supreme Court held that because exculpatory agreements relieve a party of liability, they undermine public policy considerations governing our tort system, and should be enforced judiciously, only when certain factors are present. First and foremost, the agreement should be enforced only when “an ordinary person of reasonable intelligence would understand that [*6] by signing the agreement, he or she was releasing the defendants from liability from their future negligence.” Id. at 324-5. But, even if it is clear and unambiguous, it should not be enforced if it violates the principles that undergird Tort Law.

“[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). “Thus, it is consistent with public policy ‘to posit the risk of negligence upon the actor’ and, if this policy is to be abandoned, ‘it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not shift the risk to the weak bargainer.’ Tunkl v. Regents of the Univ. Of Cal., 60 Cal.2d 92, 101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963).” Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 327, 885 A.2d 734.

Hanks sets forth the [*7] requirements for an enforceable agreement as well as the elements which demonstrate that an agreement violates public policy and renders the agreement unenforceable: the agreement concerns a business of a type suitable for regulation; the party seeking to enforce the agreement is engaged in performing a service of great importance to the public; the party holds itself out as willing to perform a service for any member of the public; there is an economic component to the transaction; the agreement is an adhesive contract; and as a result of the transaction, the plaintiff is placed under the control of the seller. These are not the exclusive elements to consider. The “ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” Id. at 330.

Also, the Hyson v. Whitewater Mountain Resorts court required that in order for an exculpatory clause to validly release the defendant, it must be clear and contain specific reference to the term “negligence.” Id. at 643.

The plaintiff argues that the language of the release is not clear; and that there are insufficient references to the [*8] word “negligence.” Also, the plaintiff asserts that the circumstances under which he was required to sign the release prevented him from reading it or considering the ramifications of it. Defense counsel disputed the characterization of the transaction as “chaotic.”

Because of this factual dispute, the court concludes that the motions should be denied. It is irrelevant to the court’s consideration whether the transaction was commercial or not; whether the language was sufficiently clear and unambiguous; or whether the plaintiff could have ridden his own bike during the ride. If the plaintiff was not afforded the opportunity to read and consider the Waiver and Release, then the agreement cannot be enforced. It is for the trier of fact to determine this.

There is no dispute that Felt Racing brought the bikes to the ride for the specific purpose of demonstrating and loaning them to interested riders and potential future customers. They were prepared for and anticipated last minute requests for bikes. Additionally, they custom fitted the bikes to the riders, regardless of whether the bikes had been pre-sized for them or not.

There are certainly instances in which it may be appropriate and [*9] in line of public policy to enforce contractual agreements which relieve one party of liability to another for injuries. However, Connecticut has a long history of requiring courts to carefully scrutinize such contracts. See e.g., Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006) (“[T]he law does not favor contract provisions which relieve a person from his own negligence . . . Hyson v. White Water Mountain Resorts of Conn., Inc. . . .”).

The defendants created the conditions under which the plaintiff could participate in the ride on a Felt bicycle. Enforcement of an agreement requiring the plaintiff to assume the risk of the defendants’ actions when there is a question of fact regarding whether the plaintiff had been given sufficient time to read and consider the Waiver and Release, would violate public policy, even if the language of the agreement was explicit and clear. For this reason, this court denies the defendants’ motions for summary judgment.

Robinson, A., J.


Crashing while mountain biking is an inherent risk under Indiana’s law.

The plaintiff also admitted that he knew the risks of mountain biking and as such were contributorily negligent which barred his claims against the park owner.

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

State:  Indiana, Court of Appeals of Indiana

Plaintiff: (At Trial) Richard Kaler 

Defendant: (At Trial) Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation

Plaintiff Claims: Premises Liability 

Defendant Defenses: No liability and Contributory Negligence 

Holding: For the Defendants (at Trial) 

Year: 2017 

Summary

Crashing while mountain biking is an inherent risk under Indiana’s law. The plaintiff, an experienced mountain biker could not recover from the park because he knew and had crashed mountain biking and his knowledge of mountain biking also made him contributorily negligent. Contributory negligence under Indiana Law is a complete bar to recovery when suing a municipality.

Facts 

This decision the parties in the heading is reversed. The plaintiff is listed second in this case at the appellate court heading and the defendants are listed first. The reason is the defendants are appealing the trial court’s ruling and they the defendants are prosecuting the case to the appellate court. Few states work this way in titling their decisions. 

The City of Indianapolis, through its Indy Parks and Recreation department owns Town Run Trail Park. It has numerous mountain bike trails through the park which are managed by the Hoosier Mountain Bike Association.

The plaintiff had been mountain biking for five or six years. An Eagle Scout had created a berm in the park as part of a “merit badge” in the park. While riding the berm the plaintiff crashed and sued.

He described himself as an “experienced” and “better than average” bicyclist. Although he was familiar with the trails at Town Run, he had not been on the mountain-bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.”

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

All states have Premises Liability statutes. These statutes set out the duties of land owners relative to people on their land. If the land owner fails to meet those duties, the landowner is liability. An injury to a person on someone’s land is called a premises liability claim.

The plaintiff mountain biker brought a premises liability claim for his injuries. To win a premises liability claim in Indiana the plaintiff must prove the landowner. 

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger. 

The plaintiff failed to prove this to the appellate court on two different arguments. First, the plaintiff’s experience as a mountain bike showed he knew that crashing was a possibility mountain biking, and he crashed often. 

He admitted that a fall “was just a general consequence of the sport.” Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark, but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” At no point, did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions. 

Second he had ridden the wooden berm once before that day, electing to take a lower ride through the berm. The second time he went faster taking the higher edge of the berm when he crashed.

The plaintiff could not prove that actual or constructive knowledge that the City knew the trail created an unreasonable risk of harm to the plaintiff. Not because of the lack of the cities’ knowledge, but because crashing was part of the sport. Therefore, there was no unreasonable risk. The plaintiff had testified that crashing was part of the sport.

As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element.

Having the plaintiff admit crashing was part of the sport, the court held that while mountain biking crashing was an inherent risk of the sport. If a risk is inherent to the sport, then you could not sue for injuries from an inherent risk.

The second defense brought by the City on appeal was the plaintiff was contributorily negligent. Contributory negligence 

“[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.

If you can prove the plaintiff was responsible for his own injuries, then the defendant is not liable. In some states, this could act to reduce the plaintiff’s damages. In Indiana, it was a complete bar to the plaintiff’s claims. 

Reviewing the testimony of the plaintiff, the court found that the plaintiff was not completely free of all negligence. Meaning the plaintiff was also negligent and therefore, barred from suing for his claims.

So Now What? 

Two great ideas came out of this for land owners in Indiana. The first is crashing is an inherent risk of the mountain biking. Most mountain bikers already knew this; however, having a court make the statement is great. 

Second premises liability statute in Indiana has been interpreted to allow the defendant to introduce the knowledge and skill of the plaintiff as a defense to the plaintiff’s claims and as a denial of his claims. 

What do you think? Leave a comment. 

Copyright 2017 Recreation Law (720) 334 8529 

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

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Indianapolis, Indy Parks and Recreation, trail, berm’s, bike, summary judgment,
riding, premises liability, mountain, high grade, ride, genuine, rider,
designated, obstacles, grade, drop, issue of material fact, contributorily
negligent, risk of harm, approaching, landowner’s, invitee, sport, golf course,
golf ball, contributory negligence, challenging, objectively, precaution,
bicyclist, bicycle, mountain bike, mountain biking, inherent risk. Inherent
risk,


 

 


Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation,1 Appellants-Defendants, v. Richard Kaler, Appellee-Plaintiff.

1 On February 23, 2017, Hoosier Mountain Bike Association, Inc. filed a notice of settlement with Richard Kaler and, as part of the settlement, dismissed this appeal. Accordingly, Hoosier Mountain Bike Association, Inc. is no longer a party in this cause. We will still include facts with respect to the Hoosier Mountain Bike Association, Inc. where necessary for our decision.

Court of Appeals Case No. 49A04-1604-CT-865

COURT OF APPEALS OF INDIANA

73 N.E.3d 712; 2017 Ind. App. LEXIS 133

March 23, 2017, Decided

March 23, 2017, Filed

PRIOR HISTORY: [**1] Appeal from the Marion Superior Court. The Honorable Cynthia J. Ayers, Judge. Trial Court Cause No. 49D04-1209-CT-35642

COUNSEL: ATTORNEYS FOR APPELLANTS: Donald E. Morgan, Lynne D. Hammer, Kathryn M. Box, Office of Corporation Counsel, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: John F. Townsend, III, Townsend & Townsend, LLP, Indianapolis, Indiana.

JUDGES: Riley, Judge. Crone, J. and Altice, J. concur.

OPINION BY: Riley

OPINION

[*714] Riley, Judge.

STATEMENT OF THE CASE2

2 We held oral argument in this cause on March 7, 2017, in the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank both counsel for their advocacy.

P1 Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.

3 For all practical purposes, Appellant is the City of Indianapolis as the City’s Indy Parks and Recreation department cannot be sued outside the Access to Public Records Act context. See City of Peru v. Lewis, 950 N.E.2d 1, 4 (Ind. Ct. App. 2011) (noting that units of local government, but not their individual departments, are suable under Indiana law), trans. denied.

P2 We reverse.

ISSUES

P3 The City presents us with four issues on appeal, which we consolidate and restate as follows:

(1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and

(2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent.

FACTS AND PROCEDURAL HISTORY [**2]

P4 The City of Indianapolis owns and operates the Town Run Trail Park through its Indy Parks and Recreation department. The Hoosier Mountain Bike Association, Inc. (HMBA) is responsible for maintaining the trails, which have a difficulty rating from beginner through intermediate. In the spring of 2011, an Eagle Scout, as part of his merit badge project, built a new technical trail feature along Town Run’s mountain bike trail. The feature can best be described as a banked wooden turn, also known as a berm. A rider, approaching the berm, has three options for completing the turn. First, riders can avoid the berm by staying on the dirt path on its left side. Second, riders can elect to enter the berm and ride it on the low grade, or third, riders can negotiate the turn by riding the berm’s more challenging high grade. The entrance onto the wooden turn is fully tapered with the ground, while the exit is only partially tapered. A rider [*715] choosing the low grade would exit the berm with a “little jump” off the end of the feature. (City’s App. Vol. II, pp. 100-01). A rider exiting on the high grade would have to make a two-foot jump back down to the trail.

P5 By July 9, 2011, Kaler had been mountain [**3] biking for approximately four to five years. He described himself as an “experienced” and “better than average” bicyclist. (City’s App. Vol. II, pp. 90, 91). Although he was familiar with the trails at Town Run, he had not been on the mountain bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.” (City’s App. Vol. II, p. 89). He understood that “on a mountain bike trail there’s multiple paths that you can take, one being more dangerous or less dangerous than another.” (City’s App. Vol. II, p. 89). In fact, Kaler had ridden a “fairly sophisticated” trail before which had a “four or five foot drop.” (City’s App. Vol. II, pp. 95, 96). While riding a mountain bike, Kaler was “never [] a casual rider. [He] always enjoyed the obstacles[.]” (City’s App. Vol. II, p. 100). He “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). “[I]t was just a general consequence of the sport.” (City’s App. Vol. II, [**4] p. 95).

P6 On July 9, 2011, Kaler and his girlfriend took their first trip on the trail. The mountain bike trail is shaped as a “figure 8,” with an approximate length of 6 miles. (City’s App. Vol. II, p. 92). When he first approached the berm, Kaler “took the low grade” on the feature. (City’s App. Vol. II, p. 95). As he approached the end of the turn, Kaler could see “there was a drop” so he “pull[ed] up on the fork and [did] a little bunny hop[.]” (City’s App. Vol II, pp. 102, 101). On their second trip around the course, Kaler’s girlfriend decided to take a shorter loop back to the trailhead. She was not as “adventurous” as Kaler and was concerned about getting back to the trailhead before dusk. (City’s App. Vol II, p. 92). Despite the approaching darkness, Kaler “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. II, p. 101). He reached the berm again around 9:30 p.m. Feeling “capable of riding that high line,” Kaler sped up and rode the berm “as high as [he] could possibly ride it with [his] skill set.” (City’s App. Vol. II, p. 101). As he was near the end of the berm’s high grade, he “just saw [him]self lose control [] and just knew he was dropping.” [**5] (City’s App. Vol. II, p. 101). Kaler “didn’t see the drop, [nor] was he aware of the drop” at the end of the high grade turn, instead he “thought it tapered off.” (City’s App. Vol. II, p. 104). Due to the fall, Kaler sustained lacerations to his spleen and kidney. After calling his mother and girlfriend to inform them that he had crashed, he rode his bicycle back to the trail head. That evening, Kaler and his girlfriend went out for dinner.

P7 Around 1:30 a.m. on the following morning, Kaler went to the hospital where he was diagnosed with lacerations to his spleen and kidney. On discharge, Kaler was offered physical therapy but refused it because he “didn’t feel it was necessary.” (City’s App. Vol. II, p. 99). Kaler’s recovery did not last long and he participated in a 100-mile bicycle ride later that summer.

P8 On September 7, 2012, Kaler filed his Complaint against the City, sounding in premises liability. On August 21, 2015, the City filed its motion for summary judgment. (City’s App. Vol II, p. 46). In turn, Kaler submitted his response to the City’s motion, as well as his designation of evidence. On January 6, 2016, the trial court [*716] conducted a hearing on the City’s motion for summary [**6] judgment. On February 2, 2016, the trial court issued its Order, summarily denying the motion. The trial court certified its Order for interlocutory appeal and the City sought this court’s permission to appeal. We granted the request and accepted the interlocutory appeal on May 19, 2016.

P9 Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

P10 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

P11 In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of [**7] the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff’s cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

P12 We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight unto the trial court’s rationale for its review and facilitate appellate review. Id.

II. Premises Liability

P13 In support of its argument that the trial court erred in denying its motion for summary judgment, the City relies on Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), and Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Burrell,4 [*717] Indiana’s seminal case for premises liability, [**8] our supreme court imposed a three-part test to determine a landowner’s liability for harm caused to an invitee5 by a condition of its land. Under the Burrell test, a landowner can be held responsible only if the landowner:

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger.

Burrell, 569 N.E.2d at 639-40.

4 We acknowledge that on October 26, 2016, our supreme court redrew the premises liability landscape with its decision in Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016), in which the court issued a new test with respect to the situation where an invitee’s injury occurs not due to a dangerous condition of the land but due to claims involving activities on the land. In Rogers, our supreme court distinguished Burrell as follows:

When a physical injury occurs as a condition of the land, the three elements described in the Restatement (Second) of Torts Section 343 accurately describe the landowner-invitee duty. And because Burrell involved an injury due to a condition on the land, it accordingly framed the landowner-invitee duty broadly. [] [W]hile Section 343 limits the scope of the landowner-invitee duty in cases involving injuries due to conditions of the land, injuries could also befall invitees due to activities on a landowner’s premises unrelated to the premises’ condition–and that landowners owe their invites the general duty of reasonable care under those circumstances too.

Rogers, 63 N.E.3d at 322-23. Because Kaler’s injury occurred when riding a mountain bike trail feature, we find the cause more properly analyzed pursuant to Burrell [**9] as it involved a condition of the land.

5 All parties agree that Kaler is an invitee of the City.

P14 On May 18, 2011, our supreme court issued Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), which applied the Burrell test in the realm of premises liability while participating in sports activities. In Pfenning, Cassie Pfenning was injured by a golf ball at a golf outing when she was sixteen years old. Id. at 396. At the time of the incident, Pfenning drove a beverage cart and after making several trips around the golf course “was suddenly struck in the mouth by a golf ball while driving the beverage cart on the cart path approaching the eighteenth hole’s tee pad from its green.” Id. at 397. The ball was a low drive from the sixteenth tee approximately eighty yards away. Id. The golfer’s drive traveled straight for approximately sixty to seventy yards and then severely hooked to the left. Id. The golfer noticed the roof of another cart in the direction of the shot and shouted “fore.” Id. But neither the plaintiff nor her beverage-serving companion heard anyone shout “fore.” Id. After hearing a faint yelp, the golfer ran in the direction of the errant ball and discovered the plaintiff with injuries to her mouth, jaw, and teeth. Id.

P15 Pfenning brought, among others, a premises liability claim against the Elks, the fraternal lodge that owned and [**10] operated the golf course. Id. at 405. Finding that the injury arose from a condition on the premises, the supreme court turned to Burrell in its articulation of the contours of the Elks’ duty. Id. at 406. In applying the Burrell test, the court held that the two first aspects of premises liability were not established by the designated evidence. Id. at 407. First, turning to the second element–the discovery or realization of danger–the court concluded that “for the purpose of our premises liability jurisprudence, the issue here is [] whether the Elks objectively should have expected that [Pfenning] would be oblivious to the danger or fail to protect herself from it.” Id. at 406. In applying this principle the court found “no genuine issue of fact to contravene the objectively reasonable expectation by the Elks that persons present on its golf course would realize the risk of being struck with an errant golf ball and take appropriate precautions.” Id. Addressing Burrell‘s first element–unreasonable [*718] risk of harm–the Pfenning court reasoned that “the risk of a person on a golf course being struck by a golf ball does not qualify as the ‘unreasonable risk of harm’ referred to in the first two components of the Burrell three-factor [**11] test.” Id.

P16 Likewise, here, we conclude that the designated evidence does not satisfy the Burrell requirements with respect to the duty component of premises liability. Initially, we find that it was objectively reasonable for the City under the facts of this case to expect Kaler to appreciate the risks of riding the trail and take suitable protections. The trail’s difficulty was advertised as appropriate for beginner through intermediate. Kaler’s own deposition characterized himself as an “experienced” bicyclist, who had ridden “a fairly sophisticated” trail before and who “always enjoyed the obstacles.” (City’s App. Vol. II, pp. 91, 95, 100). He conceded that to “try to get an idea of the technical requirements of the trail,” he would get off his bike, especially if he noticed something “as a danger.” (City’s App. Vol. II, p. 89). He admitted that a fall “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. [**12] II, p. 101). At no point did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions.

P17 We also conclude that the designated evidence fails to establish that the City had actual or constructive knowledge of a condition on the trail that involved an unreasonable risk of harm to Kaler. Kaler’s own deposition unequivocally affirms that being involved in a bicycle crash “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). In fact, Kaler “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element. See Pfenning, 947 N.E.2d at 407.

P18 Finding that the designated evidence conclusively established that two of the elements of the premises liability [**13] test are not satisfied, we conclude that the trial court erred by denying summary judgment to the City. We reverse the trial court’s decision and now find summary judgment for the City.

II. Contributory Negligence

P19 Next, the City maintains that Kaler is foreclosed from any recovery because of his failure to exercise the care a reasonable, prudent mountain biker should have exercised. It should be noted that Kaler brought his claim against the City, a governmental entity, and therefore, his claim falls under the common law defense of contributory negligence, as the Indiana Comparative Fault Act expressly excludes application to governmental entities. See I.C. § 34-51-2-2. Consequently, even a slight degree of negligence on Kaler’s part, if proximately contributing to his claimed damages, will operate as a total bar to his action for damages against the City, even though, as against nongovernmental defendants, any fault of Kaler would only operate to reduce the damages he might obtain.

[*719] P20 A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below the standard to which he should conform for his own protection and safety.” Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). Lack of reasonable care that an ordinary person would [**14] exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends. Id. Expressed another way, “[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Id. at 599. Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment “if there are conflicting factual inferences.” Id. “However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” Id.

P21 In Funston, the plaintiff sued the school after incurring injuries caused by a fall when he leaned backwards while sitting on the top row of a set of bleachers. Id. at 599. Funston had been at the gym for about four hours, watching two basketball games while sitting on lower rows on other sets of identical bleachers. Id. For the third game, he moved to the top row of one of the bleachers. Id. It was clearly visible that there was no back railing for spectators sitting on the top row, but Funston leaned back anyway because he “thought there [**15] was something back there[.]” Id. Our supreme court concluded that Funston was contributorily negligent as a matter of law, finding that:

It certainly is understandable that [Funston] would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence.

Id. at 600.

P22 In his deposition, Kaler affirmed that in trying to build a skill, it would not be unusual for him “to get off [his] bike and look at the [] obstacles.” (City’s App. Vol. II, p. 89). He also acknowledged that he knew the berm’s high grade would be challenging because he had just started riding high berms and had never ridden a berm as steep as the one at Town Run. As he approached the end of the turn during his first ride on the berm, Kaler could see “there was a drop[.]” (City’s App. Vol. II, p. 103). After a successful first run on the berm’s low grade, Kaler decided to ride the feature again. Despite the approaching darkness, he planned to ride the berm’s high grade as high as he possibly could because it would be “really cool to ride it and get that speed[.]” (City’s App. Vol. II, p. 101). Notwithstanding the coolness factor, Kaler conceded [**16] that riding obstacles posed a risk of bodily injury as crashes were a general consequence of the sport. Typically, to get an idea of the technical requirements of a trail, the biker “would get off his bike.” (City’s App. Vol. II, p. 89).

P23 Based on the designated evidence, we cannot conclude that Kaler was “completely free of all negligence.” See id. Kaler knew and understood the precautions a reasonably prudent mountain biker should take–inspect the feature prior to riding it–but chose not to follow them. There is no evidence that the jump from the high grade was obscured from view and Kaler conceded that he could have anticipated the drop from the high grade had he taken the precaution a reasonable bicyclist riding an unfamiliar trail would take. Accordingly, we find Kaler contributorily negligent.

[*720] CONCLUSION

P24 Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run.

P25 Reversed.

P26 Crone, J. and Altice, J. concur


Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English

An outfitter must follow industry norms when dealing with guests. If the rest of the industry gives guests a safety talk, then you better give guests a safety talk. The problem arises when your guest cannot understand what you are saying.

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

State: California, Court of Appeal of California, Fourth Appellate District, Division Two 

Plaintiff: Erika Grotheer 

Defendant: Escape Adventures, Inc., the pilot and Escape’s agent, Peter Gallagher, and Wilson Creek Vineyards, Inc.,

Plaintiff Claims: negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air  balloon company is a common carrier, and as such, owed its passengers a heightened duty of care 

Defendant Defenses: Plaintiff could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver.

Holding: For the Defendant 

Year: 2017 

Summary

Being labeled a common carrier means you owe a higher degree of care to your guests than normal. However, a hot-air balloon ride is not classified as a common carrier because the analysis used under California law, whether the operator has control over the activity, is not met in ballooning. A balloon pilot can only control the ascent and descent of the balloon, all else is left to Mother Nature.

Assumption of risk under California law eliminates a duty that might be owed by the outfitter or in this case the balloon operator. However, not giving a safety talk before the ride is not an inherent risk assumed by the plaintiff. Since the industry, the ballooning industry, gives safety talks, then there is a duty on a balloon operator to give a safety talk to its guests.

However, if no safety talk was given, that still does not mean the outfitter is liable if the injury the plaintiff received was not proximately caused by the failure to give a safety talk.

Facts

The plaintiff is German and does not speak English. Her son signed her up for a balloon flight in the California wine country. The ride crash landed, as most balloon flights do and the plaintiff suffered a broken leg.

The three defendants were the balloon company, the balloon pilot and the winery where the launch and crash occurred. 

The plaintiff sued alleging negligence and because the defendant was a common carrier, the defendant owed the plaintiff a higher duty of care. 

A common carrier in most states is a business operating moving people from one place to another for a fee. The transportation company owes a higher degree of care to its passengers because the passenger has no control over the way the transportation is provided or how the transportation is maintained. 

A good example of this is a commercial airline. You have no idea if the plane is maintained, and you cannot fly the plane. Consequently, your life is totally in the hands of a commercial airline.

The other component of a common carrier is usually the movement is from point A to point B and the main reason is the passenger needs to get from point A to point B. In California the movement is not as important as it is in the other states.  In California, the decided factor is the control factor. California’s definition of a common carrier is much broader and  encompasses many more types of transportation, including transportation for recreation or thrills, not necessarily for getting from one place to the next. 

However, in California the analysis is not who has control but who has what control. 

For additional articles about common carriers see Zip line accused of being a common carrier who makes releases unenforceable. Issue still not decided, however, in all states common carriers cannot use a release as a defense and California case examines the relationship between a common carrier and public policy when applied to a ski area chair lift

The plaintiff based her claim on failing to instruct her in the risks of ballooning and what to do if the balloon were to crash. The balloonists met at the winery and then drove to the launch site. All but the plaintiff rode with the balloon company where the defendants claim they gave a safety speech. The plaintiff rode with her son to the launch site and did not hear the speech. 

More importantly, the plaintiff did not speak or understand English so even if she would have heard the safety talk, whether or not she could have understood it would be a question. 

The trial court dismissed the plaintiff’s claims find the plaintiff could not prove the element of duty; One of the four requirements to prove negligence. The trial court also found the plaintiff had assumed the risk and as such the defendants did not owe her any duty of care. The plaintiff appealed. 

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

The court started with the Common Carrier analysis.  

California law imposes a heightened duty of care on operators of transportation who qualify as “common carriers” to be as diligent as possible to protect the safety of their passengers. A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

The court defined common carrier by statute as “A common carrier of persons is anyone “who offers to the public to carry persons.” This higher degree of care only applies to carriers who hold themselves out to the public for hire.

A carrier of persons without reward must use ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of persons for reward have long been subject to a heightened duty of care.” Such carriers “must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. 

The level of care is not absolute; common carriers are not insurers of the safety of their passengers. However, they are required to do all that “human care, vigilance, and foresight reasonably can do under the circumstances.” This heightened duty originated in England, prior to the US becoming a country and was based on: 

This duty originated in English common law and is “based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers. 

In California, the common carrier status started with stage coaches. Since then the application of the term and the heightened duty has evolved and broadened to include recreational transportation, “scenic airplane and railway tours, ski lifts, and roller coasters “have all been deemed common carriers under California law.”

In California, the degree of care is defined more by the control the passenger has over the transportation. Roller Coasters are common carriers because the passenger has no control over the speed of the coaster or the maintenance on the coaster. At the same time, bumper cars are not common carriers because the passenger is able to steer and control the speed and direction of the bumper car. 

In California, the “inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury.”

The court found the hot-air balloon was not a common carrier. Although the passenger has little if any control over the flight of the balloon, neither does the pilot of the balloon. The only control the pilot has is changing the altitude of the balloon. 

…balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of midair collisions and crash landings, making ballooning a risky activity.

The analysis the court applied then turned on how much control the operator of the transportation had, not how little the passenger had. 

But there is a significant difference between the dangers of riding those conveyances and the dangers involved in ballooning. The former can be virtually eliminated through engineering design and operator skill, whereas the latter cannot be mitigated without altering the fundamental nature of a balloon. 

Thus a balloon pilot does not owe his or her customer a heightened duty of care. 

Assumption of the risk was the next defense the court examined. Under California law if the plaintiff assumes the risk, then the defendant does not owe the plaintiff any duty of care. 

Under California law, a balloon operator does not owe his or her passengers a duty of care for the inherent risks of the activity. “The doctrine applies to any activity “done for enjoyment or thrill … [that] involves a challenge containing a potential risk of injury.”

Because the pilot of a hot-air balloon can only control the ascent and descent of the balloon and no other control of the balloon, the passenger must assume the risk of all things ballooning. 

We therefore hold the doctrine applies to crash landings caused by the failure to safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky–the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent. 

Consequently, the pilot and the balloon company owed no duty to the plaintiff. The inherent risks of ballooning include crashing. 

The court then looked at the issue of whether or not the plaintiff received any safety instructions prior to the flight. A guide, outfitter or operator of a balloon which is an inherently dangerous activity still owes a duty to take reasonable steps to minimize the inherent risks. However, those steps must not fundamentality alter the activity. “The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous.” 

What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity  without also altering the nature of the activity, the operator is required to do so. 

The issue then becomes whether or not the balloon operator owes a duty to provide safety instructions. 

Courts consider several factors in determining the existence and scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of preventing future harm, and the burden to the defendant and consequences to the community of imposing the duty.

Foreseeability is a primary factor in determining whether a duty exists. In this case, the court concluded that providing a safety briefing was custom in the industry. Nor would giving a safety lecture be overly burdensome to the balloon operator or pilot.

The duty we recognize here does not compel anything so lengthy or complex as commercial airlines’ preflight instructions. It requires
only that a commercial balloon operator provide a brief set of safe landing procedures, which Escape’s pilot said is already his custom. Safety instructions are a common practice among operators of recreational activities, and we do not believe requiring balloon operators to set aside a few moments before launch to advise passengers how to position themselves in the basket and what to do in the event of a rough landing will have a negative impact on the ballooning industry. 

So the balloon operator did owe the plaintiff a duty to provide her with a safety instruction. However, that was not the end of the analysis. To prove negligence you must prove a duty, a breach of the duty an injury that was proximately caused by the breach of the duty and damages. In this case, the failure to provide a safety breeching was not the reason why the plaintiff broke her leg, or at least, the plaintiff could not prove the proximate causation. 

Examined another way, for the injury of the plaintiff to be proximately caused by the breach of duty of the defendant, the acts of the defendant must be a substantial factor in that injury. 

To be considered a proximate cause of an injury, the acts of the defendant must have been a “substantial factor” in contributing to the injury. Generally, a defendant’s conduct is a substantial factor if the injury would not have occurred but for the defendant’s conduct. If the injury “‘would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.”

The balloon landing was called a jarring and violent crash by all witnesses. The plaintiff was on the bottom of the pile of people when the basket stopped moving, lying on its side. Any safety talk probably would not have helped the plaintiff prevent her leg from breaking in such a landing. “The accounts of the crash satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of instructions, was the proximate cause of Grotheer’s injury.” 

Consequently, although the balloon operator breached his duty of care to the plaintiff, the injury that occurred to the plaintiff was due to the crash of the balloon which was a violent event rather than the plaintiff being able to deal with a normal landing properly.

So Now What? 

The safety instruction duty is troublesome. How is an outfitter supposed to provide a safety instruction if the customer  cannot comprehend what is being said. In this case, there might have been a way around it if the son could translate for  the plaintiff. However, in many cases a family from a foreign country with little or no English shows up for a recreational  activity with little or no understanding of the activity or the risks. The outfitter has no way of making sure the customer  understands the safety briefing if the outfitter does not speak the customer’s language. 

In California, if you have a customer who does not understand what you are saying, you must probably turn them away.

 What do you think? Leave a comment. 

Copyright 2017 Recreation Law (720) 334 8529

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Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

Erika Grotheer, Plaintiff and Appellant, v. Escape Adventures, Inc., et al., Defendants and Respondents.

E063449

Court of Appeal of California, Fourth Appellate District, Division Two

14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

August 31, 2017, Opinion Filed

PRIOR HISTORY: [**1] APPEAL from the Superior Court of Riverside County, No. RIC1216581, John W. Vineyard, Judge.

DISPOSITION: Affirmed.

COUNSEL: The Law Office of Robert J. Pecora and Robert J. Pecora for Plaintiff and Appellant.

Agajanian, McFall, Weiss, Tetreault & Crist and Paul L. Tetreault for Defendants and Respondents.

JUDGES: Opinion by Slough, J., with Ramirez, P. J., and Codrington, J., concurring.

OPINION BY: Slough, J.

OPINION

SLOUGH, J.–Plaintiff and appellant Erika Grotheer is a non-English speaking German citizen who took a hot air balloon ride in the Temecula [*1288] wine country and suffered a fractured leg when the basket carrying her and seven or eight others crash-landed into a fence. Grotheer sued three defendants for her injuries: the balloon tour company, Escape Adventures, Inc. (Escape), the pilot and Escape’s agent, Peter Gallagher (Gallagher), and Wilson Creek Vineyards, Inc. (Wilson Creek) (collectively, defendants or respondents). Grotheer alleged Escape and Gallagher negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air balloon company is a common carrier, and as such, owed [**2] its passengers a heightened duty of care. (Civ. Code, § 2100.) Grotheer also alleged Wilson Creek was vicariously liable for Escape and Gallagher’s conduct because the vineyard shared a special relationship with the balloon company.

Defendants moved for summary judgment, arguing Grotheer could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver before the flight. The trial court agreed Grotheer could not establish the element of duty, finding Grotheer had assumed the risk of her injury under the primary assumption of risk doctrine and, as a result, Escape and Gallagher owed her no duty of care whatsoever. (Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) The trial court entered judgment in favor of defendants, and Grotheer appealed.

Grotheer contends the trial court erred in concluding her claim was barred by primary assumption of risk and reasserts on appeal that Escape is a common carrier. We affirm the judgment, but on a different ground than relied on by the trial court. We hold: (1) a balloon tour company like Escape is not a common carrier subject to a heightened duty of care; (2) the primary assumption of risk doctrine bars [**3] Grotheer’s claim that Gallagher negligently failed to slow the balloon’s descent to avoid a crash landing; and (3) Escape does have a duty to provide safe landing instructions to its passengers, but the undisputed evidence regarding the crash demonstrates that any failure on Escape’s part to provide such instructions was not the cause of Grotheer’s injury.

I

FACTUAL BACKGROUND

A. Preflight

Grotheer’s son, Thorsten, purchased his mother a ticket for a hot air balloon tour with Escape during her visit to California, as a present for her [*1289] 78th birthday. On the morning of the tour, Grotheer and Thorsten met with the Escape crew and the other passengers in the parking lot of the vineyard owned by Wilson Creek, near the field where Escape launched its balloons. Thorsten later testified at his deposition that when they arrived to check in, he tried to explain his mother’s language barrier to the flight crew so Escape could ensure she understood any safety instructions. Thorsten said Gallagher, the pilot, responded by waving him away and saying, “Everything is going to be fine.” Thorsten tried telling two more Escape employees his mother could not understand English, but they appeared to be in [**4] a rush and told him he could not be in the immediate launch vicinity if he had not purchased a ticket. At some point during this check-in activity, Grotheer signed Escape’s liability waiver, which purported to release the company and its agents from claims based on “ordinary negligence.”

Gallagher then drove the passengers to the nearby launchsite. Grotheer drove over separately, with Thorsten. In his declaration, Gallagher said he gave the passengers safety instructions during the drive, as is his custom. He said the instructions covered what to do during landing: “I described to my passengers what to expect in terms of lifting off … and landing … I told them to bend their knees and hold on upon landing, and not to exit the basket until told to do so.”

According to passengers Boyd and Kristi Roberts, however, neither Escape nor Gallagher provided safety instructions. Boyd declared he sat in the front passenger seat next to Gallagher during the drive, which lasted a little over a minute and during which Gallagher described his credentials and years of experience. Boyd remembered receiving “a very general informational talk … about what to expect on [the] flight,” but said [**5] “[t]here was no mention of safety issues or proper techniques for take-off and landing.” Boyd’s wife, Kristi, also rode to the launchsite with Gallagher and said she never heard him give instructions, “other than to hold on as we took off.”

B. The Crash

The tour proceeded without incident until the landing. According to the four accounts in the record, as the balloon descended at a high rate of speed, the basket crashed into a fence then crashed into the ground and bounced and skidded for about 40 yards before finally coming to a stop, on its side. By all accounts, the event was forceful and caused the passengers to be tossed about the basket.

Boyd Roberts described the crash landing as follows: “The balloon was being pushed at a good clip by the wind and we were travelling in a horizontal direction as we were also descending. We were going sideways, [*1290] and … [b]efore we landed, we actually crashed into and took out several sections of [a] 3 rail fence.” After the basket collided with the fence, it hit the ground “with a hard bump and a bounce.” The passengers were “taken for a wild ride as [the basket] was getting dragged downwind [by the balloon].” The basket “became more and more horizontal” as [**6] it was being dragged. “We easily skipped 30 or 40 yards, with a couple of hard impacts along the way.” When the basket finally came to rest, it was “on its side, not its bottom,” with Grotheer’s section on the bottom and Boyd’s on top. He recalled that Grotheer was below him “lying on what was the side of the [basket] which was now the floor.”

Kristi Roberts’s account of the crash landing matches Boyd’s. She said, “we were going pretty fast towards the ground and it looked like we might hit the fence. We did hit the fence, as the [basket] crashed in the top of the three rails, and knocked it right apart.” After that, the basket “hit the ground hard.” Kristi recalled, “I was holding on as tight as I could to the [b]asket, but we were all standing up and it was hard to keep from falling over when we crashed into the ground.”

Gallagher described the landing similarly, though not in as much detail. He said the balloon had been “descending more quickly than anticipated” and the “passenger compartment of the balloon made a hard landing, first on a fence, then on the ground.” He believed the balloon’s descent had been hastened by a “false lift,” which he described as a condition where the wind travels [**7] faster over the top of the balloon than the rest of the balloon. The faster wind creates lift, but when the wind slows the aircraft can quickly lose altitude unless the pilot adds more heat to the balloon’s envelope. In his declaration, Gallagher said he “applied as much heat as possible to the envelope to add buoyancy,” but the additional heat was not sufficient to arrest the descent before the balloon hit the fence.

In her deposition, Grotheer said the balloon basket experienced two forceful impacts, first with the fence, then with the ground. She recalled she had been holding on to the metal rod in the basket when it hit the fence, but despite holding on, she was “still sliding.” She believed her leg broke upon the second impact–when the balloon hit the ground after the collision with the fence. She described her injury as follows: “The people in the balloon, they were all holding. It was hard. It hit the ground hard. And one woman just came like this (indicating).” Grotheer added, “[a]nd the lady is innocent because even her, she was pushed. She was pushed around by the other people in the basket.” Grotheer did not think anyone collided with her after that initial impact with the ground. [**8] She explained, “I just got myself real quick together. [The injury] was just at the beginning.” [*1291]

James Kitchel, Grotheer’s expert who has piloted balloons for over 25 years, concluded the cause of the crash landing was Gallagher’s “failure to maintain safe control over the ‘delta’ temperature[,] anticipate changing pressure differentials[,] and counterbalance the effects on the rate of descent.” He disagreed with Gallagher’s false lift theory, opining instead the balloon had likely simply experienced a wind shear. He believed all Gallagher had to do “to avoid this crash entirely” was add “sufficient heat” to the envelope “before the Balloon was already about to crash.”

Kitchel explained that many people perceive ballooning as a gentle, peaceful experience, but in reality, balloon rides “can be violent, high speed events with tragic results.” What makes a balloon a risky conveyance is the pilot’s inability to directly control the balloon’s movement. A pilot can directly control only the balloon’s altitude, which is done by managing the amount of heat added to the balloon’s envelope. The direction and speed of the wind determines lateral movement. Kitchel stated, “There is no way of steering [**9] a Balloon, such as by having a rudder. … [A] Balloon pilot never truly knows where the Balloon is going to land. He is at the mercy of the wind speed and direction.”

Kitchel also opined that the industry standard of care requires a commercial balloon operator to give “at the very least, one detailed safety presentation.” According to Kitchel, the Federal Aviation Administration’s Balloon Flying Handbook (FAA Handbook) suggests the following safety instructions to prepare passengers for a “firm impact” upon landing: (1) “Stand in the appropriate area of the basket”; (2) “Face the direction of travel”; (3) “Place feet and knees together, with knees bent”; (4) “‘Hold on tight’ in two places”; and (5) “Stay in the basket.” Kitchel did not believe any one particular set of instructions was required and he described the FAA Handbook’s safe landing procedures as a “good minimum standard.”

C. The Complaint

Grotheer’s complaint against defendants alleged she was injured when the balloon “crash land[ed] into a fence located on WILSON CREEK property.” She alleged her injury was a result of negligent piloting and failure to provide safety instructions. She also alleged Escape is a common carrier and [**10] has a duty to ensure the safety of its passengers.

D. The Summary Judgment Motion

Defendants filed a motion for summary judgment, arguing Grotheer’s negligence claim failed as a matter of law because she had assumed the risk of her injury under the primary assumption of risk doctrine. Defendants also [*1292] sought summary judgment on their liability waiver affirmative defense, claiming Grotheer had expressly waived her right to assert a negligence claim. In opposition, Grotheer argued: (1) the primary assumption of risk doctrine does not apply to common carriers like Escape; (2) the doctrine did not relieve Escape and Gallagher of a duty to avoid the crash landing and to provide safety instructions; and (3) the liability waiver was invalid because Escape knew she did not speak English and could not understand it. Grotheer also argued Wilson Creek was vicariously liable for Escape’s breach because the two companies were in a “symbiotic business relationship.”

After a hearing, the court concluded it was undisputed hot air ballooning is a risky activity that can involve crash landings, Grotheer assumed the risk of injury from a crash landing by voluntarily riding in the balloon, and defendants [**11] owed no duty whatsoever to protect her from her injury. The court also concluded Wilson Creek was not vicariously liable for Escape and Gallagher’s conduct. However, the court denied the motion for summary judgment on the liability waiver defense, stating, “there is at least an arguable duress in being separated from her son who was her translator at the time and not understanding the circumstances based on the language. I think that’s a triable issue of fact.” Based on its finding of no duty, the court concluded Grotheer’s negligence claim failed as a matter of law, and it entered judgment in favor of defendants.

II

DISCUSSION

A. Standard of Review

[HN1] A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal. Rptr. 2d 841, 24 P.3d 493] (Aguilar).)

[HN2] A defendant who moves for summary judgment bears the initial burden to show the action has no merit–that is, “one or more elements of the [**12] cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to [that] cause of action.” (Code Civ. Proc., § 437c, subds. (a), (p)(2).) Once the defendant meets this initial burden of production, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of [*1293] material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) “From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law.” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1268-1269 [97 Cal. Rptr. 3d 241].) [HN3] We review the trial court’s ruling on a summary judgment motion de novo, liberally construing the evidence in favor of the party opposing the motion and resolving all doubts about the evidence in favor of the opponent. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 [30 Cal. Rptr. 3d 797, 115 P.3d 77].) We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded.1 (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal. Rptr. 2d 370, 28 P.3d 116].)

1 Without supporting argument, Grotheer claims the trial court abused its discretion in refusing to consider her objections to defendants’ evidence, and her responses to defendants’ objections to her evidence, on the ground they were untimely filed on the day of the hearing. We will not consider this claim, however, because Grotheer has not explained why any of her objections or responses had merit, or how she was prejudiced by the court’s failure to consider them. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [149 Cal. Rptr. 3d 491] [“we may disregard conclusory arguments that … fail to disclose [appellant’s] reasoning”].)

B. Escape Is Not a Common Carrier and Did Not Owe Grotheer a Heightened Duty To Ensure Her Safe Carriage

Grotheer claims Escape is a common carrier and therefore owed its passengers a heightened duty of care to ensure their safe carriage during the balloon tour. We conclude a hot air balloon operator like Escape is not a common [**13] carrier as a matter of law.

[HN4] (1) In general, every person owes a duty to exercise “reasonable care for the safety of others,” however, California law imposes a heightened duty of care on operators of transportation who qualify as “common carriers” to be as diligent as possible to protect the safety of their passengers. (See Civ. Code, §§ 1714, subd. (a), 2100, 2168.) “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.) Contrary to Escape’s contention, it is necessary to resolve whether Escape is a common carrier because the heightened duty of care in Civil Code section 2100 precludes the application of the primary assumption of risk doctrine. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1161 [150 Cal. Rptr. 3d 551, 290 P.3d 1158] (Nalwa).) [*1294]

Whether a hot air balloon operator is a common carrier is an issue of first impression in California.2 It is also a question of law, as the material facts regarding Escape’s operations are not in dispute.3 (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 339 [208 Cal. Rptr. 3d 591] (Huang).)

2 The only published case addressing the issue is Balloons Over the Rainbow, Inc. v. Director of Revenue (Mo. 2014) 427 S.W.3d 815, where a hot air balloon operator argued it was a common carrier under Missouri law for tax purposes. The Supreme Court of Missouri upheld the administrative hearing commissioner’s determination the operator was not a common carrier because it exercised discretion regarding which passengers to fly and therefore did not “carry all people indifferently,” as the statutory definition required. (Id. at pp. 825-827.)

3 Escape claims it stipulated to being a common carrier in its motion for summary judgment. Actually, Escape stated was it was not “controvert[ing] at [that] time the assertion that it is a common carrier.” But even if it had so stipulated, [HN5] we are not bound by agreements that amount to conclusions of law. (E.g., People v. Singh (1932) 121 Cal.App. 107, 111 [8 P.2d 898].)

[HN6] (2) A common carrier of persons is anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.) The Civil Code treats common carriers differently depending on whether they act gratuitously or for reward. (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1130 [29 Cal. Rptr. 3d 352, 113 P.3d 41] (Gomez).) “A carrier of persons without [**14] reward must use ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of persons for reward have long been subject to a heightened duty of care.” (Gomez, at p. 1128.) Such carriers “must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100; accord, Gomez, at p. 1130.) While common carriers are not insurers of their passengers’ safety, they are required “‘to do all that human care, vigilance, and foresight reasonably can do under the circumstances.'” (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507 [3 Cal. Rptr. 2d 897].) This duty originated in English common law and is “based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers.” (Ibid.)

Common carrier status emerged in California in the mid-19th century as a narrow concept involving stagecoaches hired purely for transportation. (Gomez, supra, 35 Cal.4th at p. 1131.) Over time, however, the concept expanded to include a wide array of recreational transport like scenic airplane and railway tours, ski lifts, and roller coasters. (Id. at pp. 1131-1136.) This expansion reflects the policy determination [**15] that a passenger’s purpose, be it recreation, thrill-seeking, or simply conveyance from point A to B, should not control whether the operator should bear a higher duty to protect the passenger. (Id. at p. 1136.)

In Gomez, the California Supreme Court concluded roller coasters are common carriers, despite their purely recreational purpose, because they are [*1295] “‘operated in the expectation that thousands of patrons, many of them children, will occupy their seats'” and are “held out to the public to be safe.” (Gomez, supra, 35 Cal.4th at p. 1136.) As with other recreational transportation like ski lifts, airplanes, and trains, “‘the lives and safety of large numbers of human beings'” are entrusted to the roller coaster operator’s “‘diligence and fidelity.'” (Ibid., quoting Treadwell v. Whittier (1889) 80 Cal. 574, 591 [22 P. 266].)

Despite the consistent trend toward broadening the common carrier definition to include recreational vehicles, almost a decade after Gomez the California Supreme Court refused to apply the heightened duty of care to operators of bumper cars, finding them “dissimilar to roller coasters in ways that disqualify their operators as common carriers.” (Nalwa, supra, 55 Cal.4th at p. 1161.) Crucial to the analysis in Nalwa was that bumper car riders “‘exercise independent control over the steering and acceleration,'” [**16] whereas roller coaster riders “‘ha[ve] no control over the elements of thrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, turns or twists of the ride.'” (Ibid.) This difference in control convinced the court that “[t]he rationale for holding the operator of a roller coaster to the duties of a common carrier for reward–that riders, having delivered themselves into the control of the operator, are owed the highest degree of care for their safety–simply does not apply to bumper car riders’ safety from the risks inherent in bumping.” (Ibid., italics added.)

(3) This precedent teaches that [HN7] the key inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury. (Gomez, supra, 35 Cal.4th at p. 1136; Nalwa, supra, 55 Cal.4th at p. 1161.) While a bumper car rider maintains a large degree of control over the car’s speed and direction, a roller coaster rider recognizes the thrills and unpredictability of the ride are manufactured for his amusement by an operator who in reality maintains direct control over the coaster’s speed and direction at all times. (Gomez, at p. 1136.) As our high court explained, the roller coaster rider “expects [**17] to be surprised and perhaps even frightened, but not hurt.” (Ibid.)

It is in this critical regard we find a hot air balloon differs from those recreational vehicles held to a common carrier’s heightened duty of care. Unlike operators of roller coasters, ski lifts, airplanes, and trains, balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of midair collisions and crash landings, making ballooning a risky activity. (See [*1296] Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 345-346 [214 Cal. Rptr. 194] [hot air ballooning “involve[s] a risk of harm to persons or property” because pilots cannot “direct their paths of travel … [or] land in small, targeted areas”]; Note, Negligence in the [Thin] Air: Understanding the Legal Relationship Between Outfitters and Participants in High Risk Expeditions Through Analysis of the 1996 Mount Everest Tragedy (2008) 40 Conn. L.Rev. 769, 772 [“hot air ballooning” is a “high-risk activity”].) As Kitchel, Grotheer’s expert, [**18] put it, a balloon pilot “is at the mercy of the wind speed and direction.” (See Note, On a Wind and a Prayer (1997) 83 A.B.A. J. 94, 95 [“winds … can transform a wondrous journey into a life-or-death struggle”].)

[HN8] (4) The mere existence of risk is not sufficient to disqualify a vehicle as a common carrier, however. Roller coasters, ski lifts, airplanes, and trains all pose “‘inherent dangers owing to speed or mechanical complexities.'” (Gomez, supra, 35 Cal.4th at p. 1136.) But there is a significant difference between the dangers of riding those conveyances and the dangers involved in ballooning. The former can be virtually eliminated through engineering design and operator skill, whereas the latter cannot be mitigated without altering the fundamental nature of a balloon.

Operators of roller coasters, ski lifts, airplanes, and trains can take steps to make their conveyances safer for passengers without significantly altering the transportation experience. For example, roller coaster operators can invest in state-of-the-art construction materials and control devices or task engineers with designing a ride that provides optimal thrills without sacrificing passenger safety. With a balloon, on the other hand, safety measures and pilot training [**19] go only so far toward mitigating the risk of midair collisions and crash landings. The only way to truly eliminate those risks is by adding power and steering to the balloon, thereby rendering vestigial the very aspect of the aircraft that makes it unique and desirable to passengers.

(5) Because no amount of pilot skill can completely counterbalance a hot air balloon’s limited steerability, ratcheting up the degree of care a tour company must exercise to keep its passengers safe would require significant changes to the aircraft and have a severe negative impact on the ballooning industry. For that reason, we conclude [HN9] Escape is not a common carrier as a matter of law.

C. The Trial Court Incorrectly Determined Escape Owed Grotheer No Duty of Care

Having concluded a hot air balloon company does not owe its passengers a heightened duty of care, we must decide whether Escape owed Grotheer any [*1297] duty of care to protect her from her injury. Grotheer claims Escape and Gallagher had a duty to safely pilot the balloon and to provide safety instructions. Escape contends it owed neither duty under the primary assumption of risk doctrine. We analyze each separately.

1. Balloon piloting and primary assumption [**20] of risk

Grotheer alleges her injury was caused in part by Gallagher’s subpar piloting. Her expert opined the cause of the crash was Gallagher’s failure to control the speed and direction of the balloon’s descent by anticipating changing pressure differentials and maintaining the proper amount of heat in the balloon’s envelope. According to Kitchel, Gallagher could have avoided the crash entirely by “adding sufficient heat … in a timely manner.”

[HN10] (6) “‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others … , some activities … are inherently dangerous,'” such that “‘[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa, supra, 55 Cal.4th at p. 1154, citation omitted.) Primary assumption of risk is a doctrine of limited duty “developed to avoid such a chilling effect.” (Ibid.) If it applies, the operator is not obligated to protect its customers from the “inherent risks” of the activity. (Id. at p. 1162.)

“‘Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty [**21] which might chill vigorous participation in the sport and thereby alter its fundamental nature.'” (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal. Rptr. 3d 536].) “Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks.” (Ibid.) The doctrine applies to any activity “done for enjoyment or thrill … [that] involves a challenge containing a potential risk of injury.” (Record v. Reason (1999) 73 Cal.App.4th 472, 482 [86 Cal. Rptr. 2d 547]; see Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 [96 Cal. Rptr. 3d 105] [by attending Burning Man festival plaintiff assumed risk of being burned during ritual burning of eponymous effigy].)

The test is whether the activity “‘involv[es] an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) As we concluded above in the section on common carriers, a balloon’s limited steerability creates risks of midair collisions and crash landings. Moreover, those risks cannot be mitigated except by adding power [*1298] and steering, which would fundamentally alter the free-floating nature of a balloon, turning it into a dirigible.4 “‘[T]he excitement of [ballooning] is that you never know exactly where you’re going to land. [¶] … [¶] … It’s taking something that is unsteerable [**22] and trying to steer it. That’s the challenge.'” (Note, On a Wind and a Prayer, supra, 83 A.B.A. J. at pp. 95, 94; cf. Nalwa, supra, 55 Cal.4th at pp. 1157-1158 [refusing to impose liability on bumper car operators for injuries caused in collisions as doing so would have the effect of “‘decreasing the speed'”–and ultimately the fun–of the ride].)

4 The term “dirigible” literally means “steerable.” It comes from the Latin verb dirigere, meaning “to direct,” and refers to lighter-than-air aircraft capable of being steered, like blimps and zeppelins. (Webster’s 3d New Internat. Dict. (1993) p. 642.)

(7) We therefore hold [HN11] the doctrine applies to crash landings caused by the failure to safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky–the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent.

(8) To avoid this outcome, Grotheer alleged Gallagher’s piloting was not only negligent, but grossly negligent, thereby increasing the inherent risk of crash landing. Grotheer is correct [HN12] the primary assumption of risk does not eliminate an operator’s duty to refrain from engaging in reckless conduct that “unreasonably increase[s] the risks of injury beyond those inherent in the activity.” ( [**23] Nalwa, supra, 55 Cal.4th at p. 1162.) However, she has provided no evidence Gallagher’s piloting fell so outside the range of ordinary it unreasonably increased the inherent risk of crash landing.

Gross negligence is a want of even scant care or an extreme departure from the ordinary standard of conduct. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 [62 Cal. Rptr. 3d 527, 161 P.3d 1095].) In this context, such extreme conduct might be, for example, launching without sufficient fuel, in bad weather, or near electrical towers; using unsafe or broken equipment; or overloading the passenger basket. In the absence of evidence of such conduct, we hold the primary assumption of risk doctrine bars Grotheer’s piloting claim.

Grotheer compares Gallagher’s piloting to the conduct of the skier defendant in Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367 [38 Cal. Rptr. 3d 422] (Mammoth Mountain), but the analogy is inapt. In Mammoth Mountain, a snowboarding instructor was injured when he collided with a skier who had stopped midslope to throw snowballs at his brother. The [*1299] court reversed summary judgment granted on the basis of primary assumption of risk, concluding there was a factual issue as to whether the skier’s behavior was so “outside the range of ordinary activity involved in the sport of snowboarding” that it increased the inherent risk of colliding with others on the slope. [**24] (Id. at pp. 1373-1374.) Gallagher’s alleged failure to control the balloon’s descent is nothing like the skier’s conduct in Mammoth Mountain. Skiing does not entail throwing snowballs, whereas managing speed and direction in the face of changing wind conditions is the principal challenge in ballooning. As a result, the failure to surmount that challenge falls squarely within the range of ordinary activity for ballooning.

2. Safety instructions and the duty to take reasonable steps to minimize inherent risks

(9) Grotheer also claims her injury was caused, at least in part, by Escape’s failure to give safety instructions. The trial court rejected this theory of liability when it concluded ballooning was an inherently risky activity and, as a result, Escape owed Grotheer no duty at all to protect her from injury. We conclude that ruling was too broad. Under Knight, [HN13] even an operator of an inherently risky activity owes a duty to take reasonable steps to minimize those inherent risks, if doing so would not fundamentally alter the activity. (Knight, supra, 3 Cal.4th at p. 317.) As we explain, instructing passengers on safe landing procedures takes little time and effort, and can minimize the risk of passenger injury in the event of a rough landing. [**25]

The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous. (Record v. Reason, supra, 73 Cal.App.4th at pp. 484-485; Nalwa, supra, 55 Cal.4th at p. 1162 [“The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury”].) For example, an obligation to reduce a bumper car’s speed or the rider’s steering autonomy would impede the most appealing aspect of the ride–the ability to collide with others. (Id. at pp. 1157-1158.) “‘Indeed, who would want to ride a tapper car at an amusement park?'” (Id. at p. 1158.) Similarly, in the context of white water rafting, an obligation to design the rafts to minimize the “risk of striking objects both inside and outside the raft,” would transform the activity into “a trip down the giant slide at Waterworld.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 256 [38 Cal. Rptr. 2d 65].) Safety is important, but so is the freedom to engage in recreation and challenge one’s limits. The primary assumption of risk doctrine balances these competing concerns by absolving operators of activities with inherent risks from an obligation to protect [**26] their customers from those risks. [*1300]

(10) What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317-318.) As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so. As the court explained in Knight, “in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.” (Knight, at p. 318.) [HN14] When the defendant is the operator of an inherently risky sport or activity (as opposed to a coparticipant), there are “steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport [or activity].” (Id. at p. 317.)

Even before Knight, tort law imposed on operators a duty to take reasonable steps to minimize the inherent risks of their activity. (See Knight, supra, 3 Cal.4th at p. 317, citing Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 728-729 [46 P.2d 144]; Shurman v. Fresno Ice Rink (1949) 91 Cal.App.2d 469, 474-477 [205 P.2d 77].) Within our own appellate district we find precedent for imposing on hot air balloon operators and their pilots a duty of care to instruct passengers [**27] on how to position themselves for landing.

In Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] (Morgan), Division One of our appellate district held a golf course owner had a duty to design its course to minimize the risk of being hit by a golf ball, despite the fact such a risk is inherent to golfing, because doing so was possible “‘without altering the nature of [golf].'” (Id. at p. 134.) Our colleagues explained this duty stemmed from the fact the defendant was the golf course owner. If, on the other hand, the plaintiff had sued the golfer who had hit the errant ball, the action would have been barred by the primary assumption of risk doctrine. (Id. at pp. 133-134.)

Nearly a decade after Morgan, the same court held a race organizer had a duty to minimize the risks of dehydration and hyponatremia5–risks inherent to marathons–by “providing adequate water and electrolyte fluids along the 26-mile course” because “[s]uch steps are reasonable and do not alter the nature of the sport [of marathon running].” (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179 [119 Cal. Rptr. 2d 497].) Faced with a similar situation in Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 [122 Cal. Rptr. 3d 22], this court held an owner of a motocross track had a duty to provide a system for signaling when riders have fallen in order to minimize the risk of collisions. (Id. at p. 1084.) Track owners could satisfy this duty by employing “caution flaggers,” [**28] or some similar device, which [*1301] would be relatively easy to implement and would not alter the nature of motocross. (Ibid.) As these cases demonstrate, the primary assumption of risk doctrine has never relieved an operator of its duty to take reasonable steps to minimize inherent risks without altering the nature of the activity.

5 A condition which occurs as a result of decreased sodium concentration in the blood.

(11) Having determined the primary assumption of risk doctrine does not absolve Escape of a duty to exercise reasonable care in all aspects of its operations, we turn to the existence and scope of the duty at issue here–safety instructions. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 [63 Cal. Rptr. 3d 99, 162 P.3d 610] [HN15] [the existence and scope of a duty of care are questions of law for the trial court to determine in the first instance and the appellate court to independently review].) [HN16] Courts consider several factors in determining the existence and scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of preventing future harm, and the burden to the defendant and consequences to the community of imposing the duty. (See, e.g., Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5 [25 Cal. Rptr. 2d 137, 863 P.2d 207].)

[HN17] (12) Foreseeability is the primary factor in the duty analysis. (Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 366 [163 Cal. Rptr. 3d 55].) Our task in evaluating foreseeability “‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable [**29] in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.'” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 [122 Cal. Rptr. 3d 313, 248 P.3d 1170].) The existence and scope of a duty of care “is to be made on a more general basis suitable to the formulation of a legal rule” to be applied in a broad category of cases. (Id. at p. 773; see Huang, supra, 4 Cal.App.5th at pp. 342-343.)

In this case, the evidence is undisputed that giving passengers a brief presentation on safe landing procedures (such as the instructions Grotheer’s expert cites from the FAA Handbook) is a customary and standard practice in the ballooning industry. To paraphrase Grotheer’s expert, these safe landing procedures are: (1) stand in the appropriate area of the basket; (2) face toward or away from the direction of travel, but not sideways (to minimize the risk of a side-impact injury to the hips or knees); (3) place the feet and knees together, and bend the knees; (4) hold on tightly to the rope, handles, or other stabilizing device, and (5) stay inside the basket. Gallagher himself agreed safety instructions are crucial. He said he always explains what passengers can [**30] expect during launch and landing. In preparation for landing, he tells them to hold on to the handles, bend their knees, and not to exit the basket until told to do so. [*1302]

As to foreseeability, undisputed evidence in the record tells us that rough landings are a risk of ballooning and instructing passengers on proper landing positioning can reduce, though not eliminate, the likelihood of injury in the event the landing does not go smoothly. Additionally, we see no public policy reason why balloon operators should not be required to give safe landing instructions. (Huang, supra, 4 Cal.App.5th at p. 342.) As Kitchel, an experienced balloon pilot, owner, and operator, explained, “[a] detailed safety briefing takes no more than 5 minutes and is time well spent.” While “[m]any balloon landings are gentle, stand-up landings … the pilot should always prepare passengers for the possibility of a firm impact,” as rough landings can result in severe injuries.

(13) Escape contends the duty to provide safe landing instructions will be overly burdensome to balloon operators, citing the complexity of the preflight instructions operators of passenger-carrying airplanes are required to give under federal regulation. (See 14 C.F.R. § 121.571 (2017).) We find the concern misplaced. [**31] [HN18] The duty we recognize here does not compel anything so lengthy or complex as commercial airlines’ preflight instructions. It requires only that a commercial balloon operator provide a brief set of safe landing procedures, which Escape’s pilot said is already his custom. Safety instructions are a common practice among operators of recreational activities, and we do not believe requiring balloon operators to set aside a few moments before launch to advise passengers how to position themselves in the basket and what to do in the event of a rough landing will have a negative impact on the ballooning industry. (Cf. Nalwa, supra, 55 Cal.4th at p. 1161 [noting bumper car operator “enforce[d] various riding instructions and safety rules” before giving control of the car’s speed and steering to riders]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th at p. 251 [operator of white water rafting tour gave plaintiff “safety instructions,” such as “where to sit, that it was necessary to hold onto the raft while navigating rapids and where to hold on, and how to react if thrown out of the raft into the water”].) Because the evidence supports Grotheer’s allegation Escape failed to give safety instructions of any kind to any of its passengers, we need not go into precisely what warnings are required, [**32] including whether a commercial balloon operator must ensure passengers with known language barriers understand the safety instructions.

We therefore conclude the court incorrectly applied the primary assumption of risk doctrine to absolve Escape of a duty to provide safe landing procedures. However, this conclusion does not end our analysis. We must also consider whether Grotheer’s negligence claim fails as a matter of law because she has not demonstrated the existence of a triable issue of fact on causation. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal. Rptr. 3d 279, 235 P.3d 947] [“‘[i]t is axiomatic that [HN19] we review the trial court’s rulings and not its reasoning'” and [*1303] “[t]hus, a reviewing court may affirm a trial court’s decision granting summary judgment for an erroneous reason”].)

D. Any Lack of Safety Instructions Was Not a Substantial Factor in Causing Grotheer’s Injury

[HN20] (14) “The elements of actionable negligence, in addition to a duty to use due care, [are] breach of that duty and a proximate or legal causal connection between the breach and plaintiff’s injuries.” (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394 [268 Cal. Rptr. 96] (Onciano).) [HN21] (15) To be considered a proximate cause of an injury, the acts of the defendant must have been a “substantial factor” in contributing to the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969 [67 Cal. Rptr. 2d 16, 941 P.2d 1203].) Generally, a defendant’s conduct is a substantial [**33] factor if the injury would not have occurred but for the defendant’s conduct. (Ibid.) If the injury “‘would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.'” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 370 [199 Cal. Rptr. 3d 522], quoting 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1185, p. 552.) As our high court has explained, “‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor.'” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal. Rptr. 2d 846, 980 P.2d 398].)

[HN22] While proximate cause ordinarily is a question of fact, it may be decided as a question of law if “‘”‘under the undisputed facts, there is no room for a reasonable difference of opinion.'”‘” (Onciano, supra, 219 Cal.App.3d at p. 395.) As noted, once a defendant claiming the plaintiff cannot satisfy an element of his or her claim meets the initial burden of production, the burden shifts to the plaintiff to demonstrate a triable issue of fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) When the evidence supports only one reasonable inference as to the cause of the plaintiff’s injury, courts should not engage in “unreasonable speculation that other contradictory evidence exists but was not adduced in the summary judgment proceedings.” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211 [223 Cal. Rptr. 645] [dismissal [**34] of negligence claim was proper because no reasonable fact finder could find a causal nexus between defendant store owner’s improper lighting and the assault on plaintiff based on the evidence presented during the summary judgment proceedings].)

As explained in the previous part, the purpose of the safety instructions is to reduce injury in the event of rough landings. Here, however, the undisputed descriptions of the landing establish it was not merely rough, but rather [*1304] was a forceful and violent event–a crash. According to Boyd and Kristi Roberts, whose uncontested descriptions are the most detailed, the basket was descending “pretty fast” when it hit the fence with such force it “knocked it right apart,” taking out several fence sections. The basket then hit the ground “hard” and skidded for about 40 yards, becoming more and more horizontal as it was dragged, before coming to a stop on its side with Grotheer’s section on the bottom. Gallagher, the pilot, said the balloon had been descending more quickly than he had anticipated when the basket made a “hard landing, first on the fence and then on the ground.” Grotheer too described both impacts as “hard.” Both Grotheer and Kristi [**35] said they had been holding on to the handles (Kristi as tightly as she could) but were unable to keep from slipping or falling.

From these descriptions, we gather the crash landing was a jarring and violent experience, a “wild ride” so forceful that several passengers fell–even one who had tried desperately not to fall by gripping the basket handles as tightly as possible. (See Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 926 [141 Cal. Rptr. 95] [“If the violence of a crash is the effective efficient cause of plaintiff’s injuries to the extent that it supersedes other factors … and makes them immaterial, plaintiff cannot recover”].) The accounts of the crash satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of instructions, was the proximate cause of Grotheer’s injury. The burden then shifted to Grotheer to explain how things may have played out differently had everyone been instructed on proper body positioning during landing. She produced no such evidence. Instead, she said at her deposition she believed everyone had in fact been holding on to the basket handles during the descent. While one could speculate that Kristi had been the only passenger holding the handles correctly and the woman who fell into Grotheer [**36] had employed an improper grip (say, using only one hand or not holding “tight,” as the FAA Handbook instructs), Grotheer presented no evidence to support such a theory. As a result, she did not meet her burden of demonstrating an evidentiary dispute about whether the provision of instructions would have produced a different outcome.

(16) We conclude any failure to instruct on Escape’s part was not a proximate cause of Grotheer’s injury, and we affirm the grant of summary judgment on that ground. Given our holding that defendants are not liable for negligence, it is unnecessary to review the trial court’s ruling on Wilson Creek’s vicarious liability or its ruling on defendants’ liability waiver defense.6

6 Defendants asked us to review the ruling on their affirmative defense in the event we reversed the trial court’s grant of summary judgment, citing Code of Civil Procedure section 906, which allows a respondent, without appealing from a judgment, to seek appellate review (at the court’s discretion) of any ruling that “substantially affects the rights of a party,” for “the purpose of determining whether or not the appellant was prejudiced by the error … upon which he relies for reversal.” Because we do not reverse the grant of summary judgment, we need not reach the issue of defendants’ affirmative defense.

[*1305]

III

DISPOSITION

We affirm the judgment. The parties shall bear their costs on appeal.

Ramirez, P. J., and Codrington, J., concurred.


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.

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.

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.

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.

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.”

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.

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 agreement. “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.

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.

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. 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.

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.”

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.

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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Author: Outdoor Recreation Insurance, Risk Management and Law

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