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Defendant was not sanctioned for failing to preserve broken bicycle parts, but only because the plaintiff could not prove the defendant’s acts were willful and contumacious.

Preservation of evidence has become a major issue of lots of litigation. Every business not needs to create a plan for how long to retain  documents, email, records, etc., and why those records are destroyed when they are.

John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

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

Plaintiff: Hywel John

Defendant: CC Cyclery and CO LLC and William Svenstrup 

Plaintiff Claims: Motion to strike defenses of the defendant for failing to preserve evidence

Defendant Defenses: failure to preserve the evidence was not willful

Holding: for the Defendant

Year: 2017

Summary

When you are placed on notice of possible litigation, you must preserve all evidence surrounding the facts of the litigation. That includes in this case, broken bicycle parts. Failing to preserve evidence can result in sanctions, including denial of your defenses. 

Facts 

The plaintiff had his bicycle serviced at the defendant’s bicycle shop. While riding his bicycle one day the front wheel of the bike dislodged causing him to fall to the ground.

After the accident, he took his bicycle back to the defendant. While the plaintiff was at the shop, he requested information about the defendant’s insurance policy. The defendant did not provide that information to the plaintiff. The plaintiff later emailed the defendant an ask for the same information and again was not provided it.

The defendant repaired the damages to the bike. After replacing the broken parts, he eventually threw them away. 

In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release. Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick release. Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle….

Again, the plaintiff asked for information about the shop’s insurance policy. Again, the shop refused to provide that information. The shop also claimed that it never touched the plaintiff’s quick release, so therefore the shop could not be
at fault for the plaintiff’s accident. 

The plaintiff then filed this lawsuit. Upon being placed on notice of a potential litigation, the law requires all parties to preserve evidence. Because the broken parts of the bicycle were thrown away, the plaintiff filed a motion asking for sanctions against the defendant for failing to preserve the evidence.

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

The basis of the plaintiff’s motion was:

Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle
parts without first “advis[ing] plaintiff or anyone else that he intended to throw out or destroy the purportedly defective parts”. Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015”. According to plaintiff, defendants “knew or should have known that the parts removed and replaced from
plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident”

In order for the court to grant any sanctions against the defendant, the plaintiff must prove the acts of the defendant were done in a willful or contumacious manner.

The issue then resolves around the point in time that the defendant should have known that possible litigation was imminent. The plaintiff argued this occurred, and the defendant was placed on notice when he asked for the defendant’s
insurance information. The defendant argued that since the defendant was a lay person, how could he interpret this as being placed on notice.

Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts

The defense also argued that loss of the broken bicycle parts was more damaging to them because they could not show how the plaintiff failed to keep his bicycle in proper condition and failed to provide for proper maintenance for his bike.

The court denied the plaintiff’s motion for several reasons. First, the plaintiff could not show that the destruction of the evidence, the broken parts was not “willful, contumacious or in bad faith.” Nor at the time of the destruction of the evidence was the defendant on notice of possible litigation.

Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading”
Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence”. Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation

The plaintiff’s motion was denied. 

So Now What? 

Although not a new area of the law, destruction of evidence has taken on new meaning and value in the digital age. Communications by phone never needed to be kept because there was no way to keep them. Emails can be preserved indefinitely, and this has created tons of litigation setting out the rules for when evidence must be preserved and when it can be destroyed. 

When in doubt, unless told to destroy it by your attorney or your insurance company, keep it. Better, give the broken parts back to your customer. 99% of the time the parts will be thrown away by the time the customer gets back home.

However, this is an area you need to check with your attorney about. Create a plan for how long you are going to hold on to documents, preserve emails and other digital information and what to with broken parts.

Sanctions for failing to preserve evidence in many other states do not have such a high bar to protect the defendant. Willful
and contumacious in most other states is far beyond what is required. So, in many other locals, sanctions are easily levied.

By the way Contumacious means stubbornly or willfully disobedient to authority or is a stubborn refusal to obey authority or, particularly in law, the willful contempt of the order or summons of a court. The term is derived from the Latin word contumacia, meaning firmness or stubbornness.[i]

 What do you think? Leave a comment.

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shop, repair, contumacious, stricken, willful, pick, material evidence, prima
facie case, failed to demonstrate, negligently, discarding, layperson,
destroyed, destroy, threw, front wheel, confirmed, repaired, riding, asking,
email, bike, preservation of evidence, Willful and contumacious, Willful,
contumacious, quick release, bicycle parts,

 

 

 

 


 

 

 

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John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

Hywel John, Plaintiff, -VS- CC Cyclery and CO LLC and William Svenstrup, Defendants. Index No. 501255/15

501255/15

SUPREME COURT OF NEW YORK, KINGS COUNTY

2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

August 22, 2017, Decided

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

CORE TERMS: bicycle, subject accident, notice, deposition, replaced, shop, repair, contumacious, stricken, willful, pick, material evidence, prima facie case, failed to demonstrate, negligently, discarding, layperson, destroyed, destroy, threw, front wheel, confirmed, repaired, riding, asking, email, bike

JUDGES: [*1] PRESENT: HON. LARRY D. MARTIN, J.S.C.

OPINION BY: LARRY D. MARTIN

OPINION

Upon the foregoing papers, plaintiff Hywel John (“plaintiff”) moves for an order: (1) pursuant to CPLR § 3126, striking the Answer of defendants CC Cyclery and Co LLC and William Svenstrup (collectively, “defendants”) on the grounds of negligent and/or intentional spoliation of material evidence; and (2) extending the time to file a Note of Issue (NOI).

Brief Facts & Procedural History

Plaintiff commenced the instant action to recover compensatory damages for personal injuries he allegedly sustained on. November 28, 2014, when the front wheel of a bicycle (the “subject bicycle”) he was riding dislodged, causing him to be flung from the bicycle onto the ground (the “subject accident”). In the verified bill of particulars, plaintiff alleges, among other things, that defendants “negligently repaired and maintained” (Bill of Particulars, ¶ 13) the subject bicycle.

At his January 11, 2016 deposition, plaintiff testified that he initially went to defendants’ repair shop, CC Cyclery and Co. LLC (“Cyclery”), to have guards placed on the subject bicycle’s wheels and a rack fitted onto the back (Plaintiff’s Affirmation, exhibit E, Hywel Deposition, 26: 24-25; [*2] 27: 13-14; 22-23). Plaintiff returned to Cyclery on the date of the subject accident to pick up his bicycle, and was riding along Avenue A, in Brooklyn, New York, when the subject accident occurred [**2] (id. at 31: 22-25; 32:2-11). Plaintiff testified that immediately after his accident, he returned to Cyclery, informed an individual named Mr. Jeff Underwood (“Mr. Underwood”) of what transpired and left the bicycle in the shop’s possession for further repairs to be performed (id. at 64: 7-12).

Thereafter, plaintiff emailed Mr. Underwood on December 3, 2014 asking for the company’s insurance information, claiming that he was “pretty concerned about [his] healthcare contribution going forward” as well as his “lack of ability to work properly over the next couple of months” due to his injuries (id. at exhibit M). Mr. Underwood responded to plaintiff in an email dated December 9, 2014 stating, among other things, “your front wheel had to be straightened and the tire had to be replaced . . .” and “I also switched out the quick release on the front to a Allen bolt . . .” (id. at exhibit L). Mr. Underwood did not address plaintiff’s request for insurance information in his email. According to plaintiff, he returned [*3] to Cyclery on January 23, 2015 to pick up his bike and, once again, asked Mr. Underwood for the company’s insurance information (id. at 68: 15-17). However, plaintiff claims that Mr. Underwood refused to comply with plaintiff’s request for insurance information (id. at 68: 18-20).

At Mr. Underwood’s deposition on July 26, 2016, he stated that he is the former owner of Cyclery and, among other things, was working as a mechanic for the company at the time of the subject accident (id. at exhibit H, Underwood Deposition, 17: 5-9; 18: 12-14). Mr. Underwood confirmed that he made repairs to plaintiff’s bicycle both before and after the subject accident. Moreover, during his deposition, Mr. Underwood identified a photo of the subject bicycle (previously marked as Defendants’ exhibit A) and confirmed that it accurately depicted the condition of the bike on the date of the accident (id. at 53: 23-25; 54: 2-3; see exhibit K).

In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release (id. at 60: 5-22). Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick [*4] release (id. at 61: 15-23). Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle [**3] (id. at 64: 5-9).

According to Mr. Underwood, plaintiff asked him to talk to the shop owner about submitting an insurance claim on plaintiff’s behalf, and Mr. Underwood replied that the company could not do so (id. at 63: 16-19). Mr. Underwood asserted that he never touched the quick release device prior to the subject accident, and, therefore, defendants could not be at fault for plaintiff’s accident (id. at exhibit H, 52: 3-5; 8; 19-21).

Plaintiff thereafter commenced the instant action on February 4, 2015. On March 1, 2016, plaintiff served defendants with a notice to “preserve and retain any and all parts and equipment f[ro]m the plaintiff’s bicycle . . .” (see id. at exhibit F). On May 5, 2016, a compliance conference was held and an order was issued directing, among other things, for plaintiff to “preserve the bicycle at issue for inspection by defendants” (id. at exhibit G).

Discussion

Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle parts without first “advis[ing] plaintiff or [*5] anyone else that he intended to throw out or destroy the purportedly defective parts” (Plaintiff’s Affirmation, ¶ 45). Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015” (id.). According to plaintiff, defendants “knew or should have known that the parts removed and replaced from plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident” (id. at ¶ 54).

In response, defendants assert that they did not act in a willful or contumacious manner in discarding the bicycle parts. Rather, defendants contend that plaintiff’s act in asking Mr. Underwood about insurance was “merely a request for insurance information that [plaintiff] could use to obtain additional health care contributions” and did not constitute notice “that the accident would result [*6] in [**4] litigation with claims of negligence on the part of the defendants” (see Defendants’ Affirmation in Opp, ¶ 4). Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts (see Defendants’ Affirmation in Opp, ¶ 4). In any event, defendants argue that striking their Answer is not an appropriate sanction in this instance because the missing bicycle parts do not prejudice or impede plaintiff’s ability to make out his prima facie case (id. at ¶ 5). In fact, defendants assert that the loss of such evidence is more prejudicial to them, “as it will be evidence that they now lack to show that plaintiff failed to keep his bicycle in proper condition and failed to request a proper maintenance from defendants at the time that he [initially] brought the bicycle in to be repaired” (id. at ¶ 6).

Based upon a review of the record submitted by the parties and the relevant law, the Court denies plaintiff’s motion. CPLR § 3126 provides for the striking out of a party’s pleadings when that party “refuses to obey an order for disclosure or wilfully fails [*7] to disclose information which the court finds ought to have been disclosed . . .” (CPLR § 3126 [3]). However, such a drastic remedy is “unwarranted absent a ‘clear showing that the failure to comply with discovery demands was willful, contumacious or in bad faith'” (Foncette v LA Express, 295 AD2d 471, 472, 744 N.Y.S.2d 429 [2d Dept 2002]). Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading” (Baglio v St. John’s Queens Hosp., 303 AD2d 341, 342, 755 N.Y.S.2d 427 [2d Dept 2003]). Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence” (Foncette, 295 AD2d at 472; see Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890, 895 N.Y.S.2d 135 [2d Dept 2010]). Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation” (Baglio, 303 AD2d at 342).

[**5] As an initial matter, the Court notes that a Notice to Preserve Evidence was not served on defendants until more than one year after the subject accident occurred and the instant action was commenced (see MetLife Auto & Home v Joe Basil Chevrolet, Inc., 1 NY3d 478, 484, 807 N.E.2d 865, 775 N.Y.S.2d 754 [2004]) [*8] . Absent such notice, the Court finds that plaintiff’s act in requesting insurance information was insufficient to put a layperson such as Mr. Underwood on notice that litigation was contemplated.

Moreover, the Court finds that plaintiff has failed to demonstrate that Mr. Underwood’s act in discarding the removed bicycle parts was willful and contumacious (see Di Domenico v C & S Aeromatik Supplies, 252 AD2d 41, 52, 682 N.Y.S.2d 452 [2d Dept 1998]). Plaintiff also fails to establish that Mr. Underwood’s actions have completely deprived him of the ability to prove his prima facie case (cf. Baglio, 303 AD2d at 342). As defendants note, plaintiff still has at his disposal the photograph reflecting the defective condition of the bicycle at the time of the accident, as well as Mr. Underwood’s undisputed deposition testimony detailing which portions of the bicycle he fixed and which portions he discarded. Thus, while it cannot be said that plaintiff is not adversely affected by the loss of the defective bicycle parts, the Court finds that plaintiff has failed to demonstrate that he is prejudiced by this loss (see Awon, 69 AD3d at 890; Foncette, 295 AD2d at 472).

Conclusion

Accordingly, that portion of plaintiff’s motion seeking to strike defendants’ Answer is denied. That portion of plaintiff’s motion seeking an order providing for the filing of [*9] the NOI is denied as moot. A review of the court’s record indicates that plaintiff filed the NOI herein on October 14, 2016. The parties are reminded of their September 6, 2017 appearance in JCP.

The foregoing constitutes the decision and order of the Court.

ENTER,

/s/ Larry Martin

HON. LARRY MARTIN

J.S.C.


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.

Copyright 2017 Recreation Law (720) 334 8529

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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,

 

 

 


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. 

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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


Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit.

The Federal District Court in this case used the language of the lift ticket to support the defendant ski area’s motion for summary judgment. The decision  also says the release is valid for lift accidents in Colorado closing one of the last gaps in suits against ski areas in Colorado.

Rumpf v. Sunlight, Inc., 2016 U.S. Dist. LEXIS 107946

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

Plaintiff: Sally Rumpf & Louis Rumpf

Defendant: Sunlight, Inc.

Plaintiff Claims: negligence, negligence per se, and loss of consortium

Defendant Defenses: (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf
was negligent per se under the Ski Safety Act. 

Holding: for the Defendant 

Year: 2016 

The plaintiff traveled to Glenwood Springs, Colorado to visit family and ski. She rented equipment from the
defendant ski area, Ski Sunlight and purchased a lift ticket. As required to rent the ski equipment, the plaintiff signed a release. 

While attempting to board a chair lift, the plaintiff injured her shoulder. The defendant filed a motion for summary judgment which the court granted with this decision. 

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

In the statement of the facts, the court quoted from the language on the lift ticket.

Holder understands that he/she is responsible for using the ski area safely and for having the physical dexterity to safely load, ride and unload the lifts. Holder agrees to read and understand all signage and instructions and agrees to comply with them. Holder understands that he/she must control his/her speed and course at all times and maintain a proper lookout. Holder understands that snowmobiles, snowcats, and snowmaking may be encountered at any time. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property. Holder agrees that any and all disputes between Holder and the Ski Area regarding an alleged incident shall be governed by COLORADO LAW  and EXCLUSIVE JURISDICTION shall be in the State or Federal Courts of the State of Colorado.

What is interesting is the Colorado Skier Safety Act, C.R.S. §§ 33-44-107(8)(b) requires specific language to be on the lift ticket.

WARNING

Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.

It is unclear from the decision, and I do not have a copy of the Ski Sunlight lift ticket, to know if the required language is on the lift ticket. However, the language that was on the lift ticket was important and used by the court to make its decision.

The language required by the Colorado Skier Safety Act speaks to the risks assumed by a skier while skiing and does not speak to any risks of a chair lift. This creates an obvious conflict in the law for a ski area. Do you use the language required by the statute or use different language that a federal judge has said was  instructive in stopping the claims of a plaintiff. 

The court found the plaintiff had read and understood the release and knew she was bound by it. The plaintiff’s argument centered on the theory that the release did not cover lift accidents based on a prior case, Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998). That case held that a ski area owes the highest degree of care to skiers on the lift. 

Plaintiffs further argue that the exculpatory language at issue is “only applicable to ski cases when the accident or injury occurs while the plaintiff is skiing or snowboarding on the slopes,” and not when loading the ski lift. 

The Bayer decision changed the liability issues for Colorado Ski Areas. It also created the only gap in  protection for Colorado Ski Areas between the Colorado Skier Safety Act and release law. However, this was significantly modified by Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662, reviewed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

The court then reviewed the requirements under Colorado law for releases to be valid. 

Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Additionally, the  terms of exculpatory agreements must be strictly construed against the drafter. 

The court reiterated several times that it was the intent of the parties within the language of the release that was the important aspect of the release, more than the specific language of the release. This intent was  supported by the language on the lift ticket. Colorado has a 4 factor test to determine the validity of a release. 

…in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. 

Skiing in Colorado is recreational and not a service, so there is no public duty that would void a release. Because it is a service, and the plaintiff is free to go ski else where there is no adhesion so the agreement was entered into by the parties fairly. 

Adhesion was defined by the court in Colorado as:

…Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary  service on a take it or leave it basis.” However, printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract.

For the plaintiff to win her argument, the plaintiff must show “, “that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.”

The court then applied contract law to determine if the agreement was ambiguous.

“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

The court in reviewing the release found the release to clearly and unambiguously set forth the party’s intent to release the ski area from liability.

The court again backed up its decision by referring to the language on the lift ticket. 

Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.” 

As such the release was valid and stopped the claims of the plaintiff and her spouse.

So Now What?

Although the basics of the decision are familiar under Colorado law, the court’s reference to the language on the lift ticket is a departure from Colorado law and the law of most other states. See Lift tickets are not contracts and rarely work as a release in most states

Whether or not a lift ticket standing by itself is enough to stop a claim is still in the air and probably will be. The language on this lift ticket may have been different than the language required by law, which basically states the skier assumes the risk of skiing. The required statutory language does not cover any issues with loading, unloading or riding chair lifts. 

This creates a major conflict for ski areas. What do you put on the lift ticket. The statute requires specific language; however, there are no penalties for failing to put the language on the lift ticket. However, it is negligence to violate any part of the statute, if that negligence caused an injury. 

C.R.S. §§ 33-44-104. Negligence – civil actions.

(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.

(2) A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704 (1) (a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

Failing to put the language on the lift ticket by itself could not cause an injury. The language required on the lift ticket is the same language required to be posted where ever lift tickets are sold and posted at the bottom of all base area lifts. Base area lifts are the lifts used to get up the mountain. Lifts that start further up the mountain, which require a lift right to reach don’t need the warning signs. 

My advice is to include the statutory language and much of the language of this decision on lift tickets. You just don’t want to walk into a courtroom and be accused of failing to follow the law. You might be right, but you will look bad and looking bad is the first step in writing a check. The biggest limitation is going to be the size of the lift ticket and print size.

This case, although decided before Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard? and was quoted in this decision, it adds another block into what is now an almost impregnable wall against claims from skiers in Colorado.

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

What do you think? Leave a comment.

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