Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Homer Hillis, Petitioner,

v.

Henry McCall, Respondent

No. 18-1065

Supreme Court of Texas

March 13, 2020

On Petition for Review from the Court of Appeals for the Fourth District of Texas

OPINION

Debra H. Lehrmann Justice

The ferae naturae doctrine limits a landowner’s liability for harm caused by indigenous wild animals on his property. In this premises-liability case arising out of a brown-recluse spider bite, we are asked how the doctrine affects the scope of the landowner’s duty to his bitten invitee. The landowner argues that he owed no duty to the invitee because he was unaware of the presence of brown recluse spiders on his property and he neither attracted the offending spider to his property nor reduced it to his possession. Further, the invitee had actual knowledge of the presence of spiders on the property. The court of appeals held that the property owner failed to conclusively establish the absence of a duty and thus reversed the trial court’s summary judgment in his favor. We agree with the landowner and reverse the court of appeals’ judgment.

I. Background

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall.[ 1] The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.[ 2]

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B.[ 3]According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area.[ 4] However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

The court of appeals reversed. 562 S.W.3d 98, 106 (Tex. App.-San Antonio 2018). Viewing the evidence in the light most favorable to McCall, the court concluded that “McCall was bitten by a spider in an artificial structure and Hillis knew or should have known of an unreasonable risk of harm posed by the spiders inside the B&B.” Id. Accordingly, the court held that Hillis had failed to establish as a matter of law the absence of a duty to warn or make safe under the doctrine of ferae naturae. Id.

II. Discussion

A. Standard of Review

A trial court’s order granting summary judgment is reviewed de novo. Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). A party moving for traditional summary judgment has the burden to prove that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); see also Tex. R. Civ. P. 166a(c). “When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted).

B. Premises Liability and Ferae Naturae

“A claim against a property owner for injury caused by a condition of real property generally sounds in premises liability.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642 (Tex. 2016). When the claim is based on the property owner’s negligence, the threshold question is whether the owner owed a duty to the injured person. See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008). “The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence” at issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).[ 5] Further, the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 535 (Tex. 1975). When the injured person qualifies as an invitee, [ 6] as McCall did, [ 7] then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious. Austin, 465 S.W.3d at 204.

Notwithstanding the general rule regarding the duty a premises owner owes to invitees, we have approached the scope of the duty differently in some circumstances. For example, we have held that a premises owner generally has no duty to protect invitees from the criminal acts of third parties on the owner’s property, but we recognize an exception “when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.” Del LagoPartners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); see also Austin, 465 S.W.3d at 206 (characterizing the duty recognized in Del Lago as an exception to the general rule that a landowner owes no duty to warn an invitee with respect to unreasonably dangerous conditions that are obvious or known to the invitee). Pertinent to this case, we have also recognized that, with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896-97 (Tex. 2016). Under this longstanding doctrine of ferae naturae, such a duty does not exist “unless the landowner actually reduced indigenous wild animals to [his] possession or control,” “introduced nonindigenous animals into the area,” or affirmatively “attract[ed] the animals to the property.” Id. at 897 (citations omitted); see also Nicholson v. Smith, 986 S.W.2d 54, 63 (Tex. App.-San Antonio 1999, no pet.).

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” Nami, 498 S.W.3d at 897 (quoting 4 Am Jur. 2d, Animals § 62 (2007)).[ 8] In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. Id.; see also Nicholson, 986 S.W.2d at 63 (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”). The risk and foreseeability of injury do not outweigh the severe burden and potential consequences of imposing a general duty on a landowner with respect to “indigenous wild animals in their natural habitat, in the normal course of their existence.” Nicholson, 986 S.W.2d at 62; see also Brantley v. Oak Grove Power Co., No. 10-12-00135-CV, 2012 WL 5974032, at *3 (Tex. App.-Waco Nov. 29, 2012, no pet.) (mem. op.) (holding that a landowner owed no duty to a construction worker who was bitten by a spider at a construction site, in part because the spider was “in its natural habitat in the normal course of its existence” and the employer had engaged in no affirmative or negligent acts to draw spiders to the area).

However, courts applying the ferae naturae doctrine have long recognized an additional exception to the general no-duty rule, holding that a landowner: could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

Nami, 498 S.W.3d at 897 (citing various treatises); see also Overstreet v. Gibson Prod. Co., 558 S.W.2d 58, 61 (Tex. App.-San Antonio 1977, writ ref’d n.r.e.) (noting that a landowner owes no duty to exercise reasonable care to protect invitees from the acts of wild animals on the property “until he knows or has reason to know that the dangerous acts by wild animals are occurring or about to occur”). Under that exception, a duty akin to the general duty owed to invitees under Texas law-that is, a duty to warn of or make safe from an unreasonably dangerous condition about which the owner knows or reasonably should know but the invitee does not-arises with respect to “wild animals found in artificial structures or places where they are not normally found.” Nami, 498 S.W.3d at 897.

We generally agree with the policies underlying imposing such a duty on landowners with respect to wild animals that pose an unreasonable risk of harm inside artificial structures like homes, stores, hotels, and offices. While landowners cannot be held to account for every animal that finds its way inside, particularly small animals like insects and spiders that may easily enter and escape detection, we also do not expect invitees as a general matter to exercise any particular vigilance with respect to wild animals when inside.[ 9] Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. See Overstreet, 558 S.W.2d at 61, 63 (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).[ 10]

Hillis argues that this exception amounts to a “new duty” that places an untenable burden on landowners. We disagree. First, it comports with the general premises-liability duty imposed on landowners with respect to invitees as well as the consistently recognized caveat to the ferae naturae doctrine. Nami, 498 S.W.3d at 897; see also Nicholson, 986 S.W.2d at 62; Overstreet, 558 S.W.2d at 61. Second, the fact that the duty hinges on the owner’s knowledge or reason to know of an unreasonable risk of harm is significant. Unfortunately, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm imposing a duty on property owners to guard against or warn of this fact of life. To that end, knowledge of the presence of a harmless indigenous insect or spider does not in and of itself amount to a reason to know of the presence of the kinds of insects or spiders that present a danger to invitees. On the other hand, a property owner who knows or should know of an unreasonable risk that dangerous indoor pests will bite invitees in his particular building has a duty to alleviate the danger or warn of it if the invitees neither know nor should know of the heightened risk. This strikes an appropriate balance between protecting invitees and ensuring that the burden placed on landowners is not unduly onerous.

Having outlined the parameters of the pertinent duty, we turn to its application to the facts of this case.

C. Analysis Viewing the evidence in the light most favorable to McCall, the pertinent facts are as follows: • Hillis’s property is in Fredericksburg, in the Texas Hill Country. • Hillis rented a cabin on the property to McCall and used a residence on the property as a B&B, mainly for weekend rentals. • Hillis conducted pest control in the B&B on an as-needed basis by instructing the housekeeper to set off bug bombs if she saw pests while preparing the B&B for guests. • McCall, an invitee, was bitten by a brown recluse spider inside the B&B while checking under the kitchen sink for a leak. • Brown recluse spiders are indigenous to Texas. • Hillis had read about brown recluse spiders on the internet and knew that they were indigenous to Texas and thus that they could be on his property. • McCall did not know brown recluse spiders were indigenous to Texas. • McCall had seen spiders on several occasions in both the cabin and the B&B. When he saw spiders in the B&B, he would notify Hillis, who passed along the information to the housekeeper who prepared the B&B for guests. • Customer reviews of the B&B had never mentioned insects. • Hillis had no actual knowledge of the presence of brown recluse spiders on his property before McCall was bitten. • McCall had no actual knowledge of the presence of brown recluse spiders on Hillis’s property before McCall was bitten.

On these facts, we hold that Hillis owed McCall no duty as a matter of law, notwithstanding the fact that the injury occurred inside the B&B. McCall’s position is essentially that because Hillis knew spiders had been seen in the B&B, and because he knew brown recluses are found in Texas, he knew or should have known that a dangerous brown recluse spider was in the B&B and thus had a duty to warn McCall.[ 11] We disagree.

First, as noted, knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Although Hillis knew that brown recluses are indigenous to Texas, the record does not show that he had identified or should have identified that the spiders McCall previously reported seeing inside the house presented a danger. Indeed, McCall testified in his deposition that the spiders he had seen in the B&B and reported to Hillis before McCall was bitten were the “[s]ame type of spiders” he had seen in his previous home in Fredericksburg, and nothing in the record indicates that he was referring to brown recluses or to any other type of venomous spider. The record thus conclusively negates a determination that Hillis knew or had reason to know of an unreasonable risk of harm presented by brown recluse spiders inside the B&B.

Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property: both knew that they had been seen in the B&B periodically, and neither knew of the presence of brown recluses or of other types of venomous spiders.[ 12] According to McCall, Hillis should have warned him that the spiders McCall himself had seen could have been venomous. But it is simply common knowledge that some spiders are venomous and others harmless. We will not impose a duty on a landowner to warn an invitee about something he already knows. See Nami, 498 S.W.3d at 897 (recognizing that imposition of a duty with respect to wild animals inside an artificial structure depends in part on a determination that the invitee cannot reasonably be expected “to realize the danger or guard against it”).

As noted, the existence of a duty is a question of law that depends on the underlying facts. Walker, 924 S.W.2d at 377. Even with respect to wild animals found inside, an owner’s duty to invitees does not extend beyond warning about or making safe from unreasonably dangerous conditions about which the owner knows or has reason to know but the invitee does not. On the record before us, we hold that Hillis negated a duty to McCall as a matter of law.

III. Conclusion

The trial court correctly granted summary judgment for Hillis on McCall’s premises-liability claim. Accordingly, we reverse the court of appeals’ judgment and render judgment that McCall take nothing.

———

Notes:

[ 1] Karen Oringderff, McCall’s common-law wife, was also a tenant. She is not a party to this lawsuit.

[ 2] Hillis disputed this characterization, stating that he typically did not affirmatively request McCall’s assistance with respect to preparing the B&B for guests. Rather, Hillis merely accepted McCall’s offer to help, was “happy that he was willing to do it, and . . . appreciated it.” For summary judgment purposes, we will accept McCall’s version of events.

[ 3] McCall was responsible for pest control in the cabin while Hillis remained responsible for pest control in the B&B.

[ 4] According to the court of appeals, “Hillis admitted in his deposition that he knew there was a population of brown recluse spiders on the property.” 562 S.W.2d 98, 106 (Tex. App.-San Antonio 2018). Neither party references deposition testimony to that effect, and our review of the record revealed no such testimony.

[ 5] We balance several factors in determining whether a duty exists, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the landowner’s conduct, the burden of preventing the injury, and the consequences of placing that burden on the landowner. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

[ 6] An invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of both.” Rosas, 518 S.W.2d at 536.

[ 7] McCall alleged in his petition that he qualified as an invitee when he was bitten, and Hillis conceded as much for purposes of his summary judgment motion. We therefore assume without deciding that McCall was an invitee.

[ 8] We recognized in Nami that insects are treated as wild animals. 498 S.W.3d at 896 (citing Restatement (Second) of Torts § 506 cmt. a (Am. Law Inst. 1977)). We see no reason to treat arachnids differently.

[ 9] In light of these considerations, the fact that the injury occurs in or near any type of artificial structure does not necessarily give rise to the exception. For example, in Brantley, the plaintiff was bitten by a spider while “standing on a concrete slab [at a construction site] with a partial structure and no roof.” 2012 WL 5974032, at *3. The court of appeals, noting testimony that “there were spiders everywhere in the field” at the site, held that the spider that bit the plaintiff was in its natural habitat and no duty was owed. Id. While we cannot anticipate how the doctrine would apply with respect to every type of artificial structure imaginable, we can say that we do not view barns and billboards in the same way as structures like houses, hotels, offices, and retail stores in evaluating the duty owed with respect to wild animals.

[ 10] We need not address whether an additional exception exists when a landowner has actual knowledge of an unreasonable risk of harm presented by a wild animal on his property (even while outside) and the patron neither knows nor reasonably should know of the risk.

[ 11] McCall does not contend that Hillis engaged in any affirmative or negligent acts to draw venomous spiders to the property.

[ 12] The court of appeals did not consider the effect of McCall’s awareness of the presence of spiders inside the B&B on whether Hillis owed him a duty, holding that “Hillis did not assert McCall’s knowledge as a basis for summary judgment [and instead] relied exclusively on the doctrine of ferae naturae to negate the element of duty.” 562 S.W.3d at 100 n.1. We disagree with that narrow characterization of Hillis’s summary judgment motion. In challenging the existence of a duty in that motion, Hillis focused principally on the absence of evidence that he had attracted brown recluses to the property; however, he explicitly referenced McCall’s knowledge as supporting a finding that no duty was owed. Hillis then elaborated on the significance of that knowledge in his reply in support of the motion. We will not ignore the relevant evidence of McCall’s knowledge that Hillis expressly brought to the trial court’s attention in his summary judgment motion and reply.

———


Results of this injury during a sailing race are scary. Federal judge unloaded on the defendant when a girl could not figure out to move when the boom shifts. Judge wanted to see safety orientation and warning labels on a personal sailboat!

The liability created by this decision will hopefully remain off shore and solely related to sailing and admiralty law; If not, never take someone outdoors again.

When your buddy wants to bring his bartender your boat for a sailing race, don’t let him. Court created liability when it found no safety training or warning labels for a group of people going sailing.

Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

State: South Carolina, United States District Court for the District of South Carolina, Charleston Division

Plaintiff: Raven Renee Ray

Defendant: Steve A. Lesniak

Plaintiff Claims: Negligence

Defendant Defenses: never could figure that out

Holding: for the plaintiff

Year: 2018

Summary

Either the defendant failed to present a defense or the court ignored it. Either way, this decision creates massive liability on the part of a trip leader in what was once referred to as common adventure activities. A group of people going out to recreate together on the weekend.

Facts

It is going to be easier to pull quotes from the decision than to outline the facts in this case. It will also give you a better understanding of the court’s position from the beginning.

At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.

Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Skinner was a crew member on the Celadon. Skinner has been sailing with Lesniak for “[r]oughly five years.” Lesniak allowed Skinner to invite a guest on the boat.

Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. He also did not give any written instructions to guests. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. At the time of the incident, there were no safety placards or visual displays on the Celadon stating that there were dangerous places to sit on the boat, such as “around any rope, boom.” Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial.

Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.”

If Lesniak had waited to gybe or made sure that Ray was in a safe location, Ray would not have been hit by the main sheet.

After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat.

The plaintiff said she was OK; the race continued. Later that day and the next week she again said she was OK. However, eventually, she sued.

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

The defendant, owner of the board, did not put up a good defense. In fact, the way the court restated his positions, it seemed the court thought he was pretty arrogant. The plaintiff hired an expert witness who started out stating the personal sailboat should be labeled like an amusement ride.

There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. There was also no formal verbal safety briefing.

The plaintiff’s expert further stated that only experts should have been on the boat.

Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.”

Based on the one-sided statement of facts and testimony only from the plaintiff’s expert, the court easily found the defendant liable.

Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver.

The court then piled it on, following basic first-year law school tort classes in explaining why the defendant was liable.

The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.

The court then proceeded to find all four required components of negligence were proven. The first was whether the defendant owed the plaintiff a duty.

It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will deter-mine how high a degree is reasonable in each case.

However, the court’s findings were just out there. The court found the defendant had a duty to determine if the plaintiff had any prior sailing experience.

In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.

Second was whether the defendant had breached that duty to the plaintiff.

The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care under Admiralty and South Carolina law.

For causation, the court determined it was the defendant’s job to prove there was no causation. That is not how causation normally works!

The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.

The judge did find the plaintiff was 25% liable for her injuries under the theory of comparative negligence.

Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.

The court found the following four specific times when the plaintiff was liable.

1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move.

2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention.

3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that “she was fine.”

4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Ray declined.

The judge then started looking at damages and found every single medical damage the plaintiff had presented had been proved and gave the plaintiff all the damages she requested including pain and suffering, past and future emotional distress and loss of enjoyment of life. Basically, the trifecta of damages.

Those damages totaled:

$958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.

So Now What?

The defendant did not put up a fight, or if he did it was ignored by the court. In fact, the entire decision is a review of the plaintiff’s case and nothing more.

What is scary, is the requirements that a trip leader on a common adventure now has a duty to enquire, duty to educate and a duty to warn.

Sailboats are not going to come with stickers and warning labels.

What do you think? Leave a comment.

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Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Raven Renee Ray, Plaintiff, v. Steve A. Lesniak, Defendant.

No.: 2:16-cv-1752-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, CHARLESTON DIVISION

2018 U.S. Dist. LEXIS 28301

February 22, 2018, Decided

February 22, 2018, Filed

CORE TERMS: sheet, boat, brain, crew members, traumatic, pain, sailboat, captain, gybe, admiralty, passenger, maneuver, sailing, vessel, medication, symptoms, present value, guest, experienced, emotional, headaches, safe, hit, suffering, lookout, sit, citation omitted, concussion, sitting, opined

COUNSEL: [*1] For Raven Renee Ray, Plaintiff: Benjamin Catlett Smoot, II, William P Early, LEAD ATTORNEY, Pierce Herns Sloan and McLeod, Charleston, SC; Theodore Augustus Consta Hargrove, II, Pierce Herns Sloan and Wilson LLC, Charleston, SC.

For Steve A Lesniak, Defendant: Joseph R Weston, Stephanie A Phillips, LEAD ATTORNEYS, Weston Law Firm, Mt Pleasant, SC.

JUDGES: DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

OPINION BY: DAVID C. NORTON

OPINION

Plaintiff Raven Renee Ray (“Ray”) brought this admiralty action against Defendant Steve A. Lesniak (“Lesniak”) pursuant to Federal Rule of Civil Procedure 9(h). Ray is suing Lesniak for personal injuries and other damages she sustained as a result of being struck by the main sheet during a sailing race on Lesniak’s boat “the Celadon.”

The court tried this case without a jury on September 18, 2017. Having considered the testimony and the exhibits admitted at trial, as well as the parties’ pre-trial briefs and post-trial proposed findings and conclusions, the court now makes the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). It finds that Lesniak was negligent in his captaining of the Celadon, that Ray suffered an injury while an invited guest on the Celadon as a result of Lesniak’s negligence, and [*2] that as a result of this injury Ray has a permanent traumatic brain injury. It awards $958,758.15 in damages. This award, in the court’s eyes, gives Ray what she deserves–“just some justice, some recognition and help.” Tr. 135:24.

FINDINGS OF FACT1

1 These findings are based on the preponderance of the evidence presented to the court.

1. At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.

2. At the time of the incident, 57-year-old Lesniak was the owner, operator, and captain of the sailboat Celadon on which the incident occurred. Lesniak is an experienced captain, who has 35 years of sailing experience–including 25 years of sailing experience in Charleston. Tr. 205:15-17. He has captained “several hundred, maybe a thousand” sailboat races. Tr. 205:18-20. He has been sailing with some of the crew members that were on the Celadon at the time of the incident for “15, 20 years.” Tr. 205:24-206:7.

3. The sailboat Celadon on which the incident occurred is a fifty-one foot, 1995 Beneteau Oceanis 510 registered in [*3] Charleston County, South Carolina. At the time of the incident, Lesniak had owned and operated the Celadon for approximately fifteen years.

4. Operation of the sailboat during a race requires several crewmembers. Thirteen crewmembers and a number of guests were aboard the sailboat on the day of the incident. Tr. 182:1-183:1.

A. The Accident:

1. The court now turns to the day of the incident, May 21, 2014. Ray was invited to a sailboat race by Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Tr. 106:14-20. Skinner was a crew member on the Celadon. Tr. 184:3-6. Skinner has been sailing with Lesniak for “[r]oughly five years.” Tr. 206:20-22. Lesniak allowed Skinner to invite a guest on the boat. Tr. 184:5-6.

2. The other crew members who were on the Celadon during the incident had years of sailing experience, many as crew members with Lesniak. Tr. 206:10-208:4. Of the crew members on the boat at the time of the incident, at least three had medical backgrounds, ranging from Emergency Room nurse to thoracic surgeon. Tr. 206:10-208:9. Lesniak testified that these crew members had previously taken action if anyone suffered an injury on the [*4] boat during sailing races and trips. Tr. 209:21-210:5.

3. Lesniak testified that all of his crew members “[knew] to look after new people.” Tr. 208:18-21.

4. Lesniak authorized crew members to perform tasks during the race, including telling guests when and where to move during the course of the race. Tr. 209:1-20.

5. Ray and Skinner arrived at the Carolina Yacht Club, the marina where the yacht was docked. Tr. 107:7-12. When she got to the boat, there were “many” people on the boat, including crew members and guests. Tr. 108:1-4. Ray testified that she did not know anyone on the boat other than Skinner. Tr. 108:5-6.

6. Before May 21st, 2014, Ray had never been on a sailboat. Tr. 106:21-107:1. She knew nothing about how a sailboat worked. Tr. 107:2-4.

7. Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. Tr. 184:12-17. He also did not give any written instructions to guests. Tr. 187:2-6. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. Tr. 187:16-21. At the time of the incident, there were no safety placards or visual displays on the Celadon stating [*5] that there were dangerous places to sit on the boat, such as “around any rope, boom.” Tr. 186:20-187:1. Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial. Tr. 14:16-185:6. Lesniak did not hear what safety talks were given to guests because he was at the helm of the boat. Tr. 185:5-9.

8. Ray was late to the start of the boat race and was given an abbreviated version of the “safety talk” by crew members, which involved an instruction on where not to sit on the boat. Tr. 192:10-18.

9. Upon arriving on the Celadon, Skinner placed Ray at the position where she was sitting when the main sheet hit her. Tr. 264:8-265:19. Ray was seated on the deck of the Celadon, near the main sheet. Ex. 13.

10. The crew was aware of where Ray was sitting. Tr. 204:4-6.

11. Within 5-10 minutes of Ray stepping on board the Celadon, the incident occurred. Tr. 194:2-5.

12. Before she was hit, Ray was given instructions by crew members to “get more neighborly, get closer together.” Tr. 114:2-3. Specifically, crew member Dawn Truog (“Truog”) asked Ray, who was sitting in front of the main sheet, to “move back from the [main] sheet.” Tr. 250:16-25. There [*6] was no evidence presented that Ray knew what a “main sheet” was. Crew member Mary Anne Becker (“Becker”) also testified, stating that she “told [Ray] specifically to move, move up front, move forward” multiple times, because Ray “was going to be brushed by the sheets” when the boat gybed. Tr. 257:6-12. Becker further testified that even after these verbal warnings to move, Ray “didn’t move,” and “the next thing” Becker knew was Ray “down on the gutter” of the boat. Tr. 257:17-20.

13. Lesniak made the decision to gybe, which is the action that caused the main sheet to strike Ray. Tr. 199:16-17. When the captain executes a gybe maneuver, as Lesniak did here, the main sheet moves across the deck of the boat. Tr. 221:14-25.

14. Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. Tr. 213:22-214:5. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Tr. 254:25-255:3. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.” Tr. 251:9-18.

15. If Lesniak had waited to gybe or made sure [*7] that Ray was in a safe location, Ray would not have been hit by the main sheet. Tr. 202:9-13.

16. After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat. Tr. 115:14-20. The main sheet carries a significant amount of pressure, “absolutely” enough to cause a serious injury. Tr. 237:6-25. Lesniak saw the main sheet strike Ray. Tr. 198:25-199:6.

17. The court considered the testimony of various crew members who were on the Celadon during the incident. For example, Dr. Bill Lynch testified about the main sheet hitting Ray. Additionally, he testified that he did not give any safety instructions to Ray, and was not aware of any sailing experience that she had. Tr. 247:1-6.

18. Ray was left with an abrasion on her forehead as a result of the main sheet hitting her. Pl.’s Ex. 2.

19. After Ray was injured, Lesniak did not turn the boat around. Tr. 117:5-12. Lesniak continued with the boat race. Tr. 148:10-18.

B. Breach of Safety Protocol:

1. Ray testified about the instructions she was given when she got on the Celadon. Specifically, Ray stated that she was “told where the lines were” and where to sit. Tr. [*8] 109:18-23. She was given these instructions and told where to sit by a crew member, “Peggy.” Tr. 110:6-9. She was not warned that she “might get hit in the head with a boom or a rope or anything like that.” Tr. 110:10-17. There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. Tr. 110:18-24. There was also no formal verbal safety briefing. Tr. 111:4-7.

2. Ray did not hear, and “wouldn’t have understood” any instructions on whether the boom or main sheet were going to swing during the course of the race. Tr. 115:1-4.

3. The court also credits the testimony of Ray’s expert Captain Ken Wahl (“Wahl”), who the court qualified as a boating expert and marine safety consultant. Tr. 214:20-215:9. Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Ex. 1 at 8. Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his [*9] review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.” Tr. 220:1-9.

4. Wahl opined that Lesniak, who had captained hundreds of races, became “complacent” by delegating the “safety orientation” for guests to crew members. Tr. 225:9-226:3.

5. Wahl testified that when a boat race begins, “[t]here’s some very dangerous places to be on board the boat . . . [a]nd it’s certainly not a safe place to be right near the main sheet.” Tr. 221:10-13. Accordingly, Ray, who was seated on the deck of the boat near the main sheet, was in a dangerous position. Tr. 222:1-6.

6. Specifically, Wahl opined that “[m]oving isn’t quite enough” “when somebody doesn’t know anything about a sailboat, because they don’t know where to move to.” Tr. 223:23-25. The proper procedure for a crew member to ensure that Ray was moved safely to another area of the boat was for Lesniak or a crew member to physically ensure that she had been moved to a safer place. Tr. 226:14-227:16. Simply telling a novice passenger like Ray who had never been on a sailboat to move was insufficient, and a breach of safety protocol. [*10] Tr. 227:9-21.

7. Wahl further opined that it was in contravention of boat safety protocol for Lesniak to gybe while Ray was sitting next to the main sheet, as gybing the boat necessarily causes a movement of the main sheet. Tr. 223:14-19. Wahl offered suggestions on what safety protocol Lesniak should have followed in that scenario, such as “[d]elay the gybe, get somebody to move that person, tell them where to sit, where the safe spot is.” Tr. 223:16-22. Lesniak did none of these things.

8. When a captain changes the position of the sails, such as the gybe maneuver that Lesniak performed, Wahl testified that the captain “typically” will call out to the crew and let the crew members know that he will be changing the position of the sails. Tr. 238:16-239:4.

C. Comparative Negligence:

1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move. Tr. 257:17-20.

2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention. Tr. 210:6-23.

3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that [*11] “she was fine.” Tr. 210:24-25.

4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Tr. 210:1-5. Ray declined. Tr. 210:1-5.

D. Causation of Traumatic Brain Injury:

1. Two days after the incident, Ray went to Nason Medical Center because she was experiencing “extreme body pain.” Tr. 119:17-24. Within seven days of the incident, Ray began experiencing different symptoms–namely, debilitating nausea and headaches. Tr. 120:11-21. Ray was “extremely” confused when she went to the Medical University of South Carolina (“MUSC”) the week after the incident as a result of her new symptoms. Tr. 121:1-6. At MUSC, Ray was referred to a neurologist who diagnosed Ray with a concussion and prescribed medications for a head injury. Tr. 121:7-25.

2. The only medical expert who testified during the trial was Dr. Marshall Allen White (“Dr. White”), a board-certified neurologist.2 Tr. 8:15-16. Dr. White treats patients with traumatic brain injuries as part of his practice on “nearly a daily basis,” and has done so since 1991. Dr. White has testified in the past as to both the diagnoses [*12] and causation of traumatic brain injuries. The court credits Dr. White as an expert in the field of traumatic brain injuries. Tr. 9:21-10:17. Dr. White examined Ray, and reviewed the following medical records: (1) Nason Medical Center; (2) MUSC; (3) Dr. Jeffrey Buncher, a pain management physician in Charleston, South Carolina; (4) physical therapy records; (5) acupuncture records; (6) neuropsychological testing performed by Dr. Randolph Waid; and (7) psychiatric records from Dr. Kurtzman. Tr. 11:1-21. Dr. White testified that, based on his examination of Ray, a review of her medical records, and consulting with peer-reviewed articles, Ray sustained a traumatic brain injury. Tr. 12:5-12. Specifically, Dr. White testified that Ray had the symptoms of a concussion immediately following the incident, in that she was “dazed, confused,” and the morning after the event she felt “that she was not going to be able to wake up,” which Dr. White testified indicated “a level of hypersomnolence, which is typical following a concussion.” Tr. 12:17-13:1. Dr. White further testified that compared to “baseline records” that were “pretty close in proximity” to the incident, he observed that Ray had [*13] “heightened levels of anxiety, trepidation, moodiness, difficulty sleeping after the period of hypersomnolence, difficulty focusing, poor memory, and anxiety levels which were dramatically increased from her baseline levels.” Tr. 13:2-10. All of these symptoms of traumatic brain injury, according to Dr. White, were caused by the head trauma that Ray suffered during the incident. Tr. 13:11-15.

3. According to Dr. White, Ray’s traumatic brain injury is “permanent.” Tr. 13:16-18. All three of these opinions–that Ray had a traumatic brain injury, that the brain injury was permanent, and that the brain injury was the result of the incident on the Celadon–Dr. White testified that he held to a “reasonable degree of medical certainty.” Tr. 13:19-22. Specifically, in his report, Dr. White states that:

It is my opinion to a reasonable degree of medical certainty that Ms. Ray experienced traumatic brain injury as a result of her sailing incident, which occurred in 2014. There is ample evidence of headache, nausea, vomiting, and worsening in her neuropsychiatric syndrome and cognitive abilities following the incident . . . It is further my opinion that Ms. Ray would clearly have academic, social [*14] and occupational difficulties throughout every facet of her life.

Pl.’s Ex. 4. Dr. White further testified that when he examined Ray, she was having emotional and concentration issues that he attributed to her “residual [traumatic brain injury] symptomology,” and that this was consistent with a patient with her level of brain injury. Tr. 28:13-23.

4. Dr. White also testified at length about Ray’s post-incident treatment in the week after the incident, based on his review of her medical records. At Nason, Dr. White testified that no diagnostic testing was performed, and instead Nason “basically gave her pain medicine and sent her home.” Tr. 17:9-11. Then, Ray went to the MUSC emergency room, where she was “evaluated and treated” for “neck and back pain.” Tr. 17:14-15. Ray then returned to MUSC with “complaints of pain,” and returned once again within five days of the injury “complaining of headaches” as well as nausea and vomiting. Tr. 17:19-23. These symptoms of headaches, nausea, and vomiting, were, Dr. White testified, symptoms of a concussion. Tr. 18:11-14. Based on his review of Ray’s medical records and after taking her medical history, Dr. White concluded that Ray had “a lot” of [*15] the symptoms of the postconcussive syndrome. Tr. 20:5-9.

5. Lesniak argued at various points during the bench trial that Ray did not immediately experience any symptoms of headaches, nausea, and vomiting while on the Celadon or the next day. However, Dr. White testified that there can be “delayed effects from concussion.” Tr. 35:24. Furthermore, Ray had consumed at least one beer immediately before the incident. Alcohol consumption, Dr. White testified, would impair Ray’s ability to recognize her symptoms. Tr. 36:6-11.

6. Dr. White testified that postconcussive headaches such as the ones that Ray experienced can be developed “within seven days of the concussion itself.” Tr. 18:22-24. Indeed, Dr. White testified on the types of symptoms during the “days and weeks” after a concussion, and stated that there can be “difficulty concentrating, moodiness, hypersomnolence . . . [a]nxiety . . . headaches, nausea, and vomiting.” Tr. 19:1-17.

7. Ray had a CT scan done at MUSC, which had normal results, but Dr. White testified that the normal CT scan did not disturb his opinion that Ray had a traumatic brain injury, as mild traumatic brain injury patients will have “under almost all circumstances [*16] . . . normal imaging.” Tr. 21:18-22:2. Indeed, Dr. White testified that a normal CT scan was “expected” for patients with mild traumatic brain injury. Tr. 22:3-6.

8. The court considered that Ray was not diagnosed with traumatic brain injury, or indeed any injury at all, by any emergency room physicians in her visits to Nason or the MUSC ER. But, according to Dr. White, the peer-reviewed literature in the field is clear that mild traumatic brain injuries “can be overlooked,” even by emergency room physicians. Tr. 36:2-5. Furthermore, in none of the medical visits that Ray had in the immediate aftermath of the incident did she have any cognitive testing done that would have detected such cases of traumatic brain injury. Tr. 52:11-60:4.

9. Dr. Kurtzman, a psychiatrist who examined Ray on May 1st before the incident, indicated that Ray was working on her graduate thesis and had no “uncontrolled anxiety or crying spells.” This psychiatric record is closest in proximity to the incident. Tr. 14:13-15:11. Dr. Kurtzman’s psychiatric record further indicates that as of May 1st, Ray was a “student, working doing marketing, volunteering, and doing research–all while supporting herself financially.” [*17] Tr. 15:12-20. In his treatment notes for Ray after the incident, Dr. Kurtzman stated that Ray had “suffered . . . emotionally and physically from an injury sustained from being hit by a sailboat boom . . . I’m concerned about her emotional prognosis and her emotional upset secondary to the accident.” Tr. 23:6-24:4. Dr. Kurtzman also prescribed Ray the medication Adderall, which Dr. White testified is an “amphetamine stimulant” that is “used for patients with [traumatic brain injury] who are having difficulty concentrating.” Tr. 24:5-15. Concentration and attention problems such as those treated with Adderall are consistent with the diagnosis of mild traumatic brain injury, Dr. White testified. Tr. 24:16. Dr. White further testified that during his examination and interview with Ray, she stated that she experienced those symptoms for the first time after the date of the incident. Tr. 24:19-22. Ray testified that she had never been prescribed Adderall or psychostimulants before the incident. Tr. 101:14-102:7. At the direction of her doctor, Ray has been taking Adderall in increasing doses since the incident. Tr. 126:22-11.

10. The court acknowledges that prior to the incident, Ray was [*18] on the medication Klonopin to treat anxiety. Tr. 16:2-9. However, Dr. Kurtzman was on a successful program to wean Ray off of Klonopin. Tr. 16:10-16. Ray testified that she was in the process of “taper[ing] off” the anti-anxiety medication. Tr. 102:16-103:4. The court also acknowledges that Ray suffered from general anxiety disorder, which can have symptoms similar to those found in someone with a concussion. Relatedly, the court has considered Ray’s testimony about the circumstances of her unfortunate upbringing, including her time in foster care and her intermittent history with prescribed antidepressants and anti-anxiety medication. Tr. 92:1-99:3. The court credits Dr. White’s opinion–that the temporal relationship between the incident and the onset of symptoms supports a finding that Ray was not suffering from her historical general anxiety disorder, but from the head trauma she received as a result of the incident. Tr. 48:4-20.

11. Ray was seen by Dr. Woodard, a neurologist at MUSC, “several months” after the incident. Dr. Woodard also diagnosed Ray as having postconcussion syndrome, and placed her on gabapentin and nortriptyline. Nortriptyline is used to treat headaches, while [*19] gabapentin is used to treat headaches, mood disturbances, and sleep. Tr. 20:12-21:14.

12. On July 28, 2015, Ray had neuropsychological testing, which discerns whether there are “cognitive or emotional deficits related to injury” performed by Dr. Randolph Waid. Tr. 25:1-14. Specifically, Dr. Waid employed the Conners Continuous Performance Test II to assess Ray’s “attentional abilities.” Tr. 25:14-24. Based on Ray’s pre-incident level of functioning, Dr. Waid felt that Ray’s concentration abilities, which were in the ninth percentile, were low. Tr. 26:2-5. Ray had a “very high GPA” in her college and graduate work before the incident. Tr. 26:11-12. Ray had a 3.7 GPA at the College of Charleston. Tr. 101:5-7. The cause of the decrease in Ray’s attention between college and the day that Dr. Waid performed his neurophysical testing was, in Dr. White’s opinion, the traumatic brain injury that she suffered as a result of the incident. Tr. 26:15-18.

13. Ray also saw Dr. Jeffrey Buncher for injuries related to the incident. Ray had pain management issues before the incident, specifically with chronic neck and back pain. Ex. 8. But Ray’s pain problems with her sacrum were, in Dr. White’s opinion, [*20] “exacerbated” by the incident. Tr. 27:1-21.

14. Dr. White offered a future treatment plan to treat Ray’s permanent condition and opined that “there are a number of interventions that ought to be taken in her care that are currently not being taken” and that Ray was not receiving treatment from any doctors who treated traumatic brain injuries. Tr. 30:1-32:2. Dr. White also testified about the cash prices of the drugs necessary for the future treatment plan. Tr. 32:14-33:15.

15. The court also considered the testimony of Chad Houfek (“Houfek”), an acupuncturist and the owner of Charleston Community Acupuncture. Tr. 81:11-23. Houfek knew Ray as a patient as well as a volunteer at Charleston Community Acupuncture. Tr. 82:2. In her capacity as a volunteer, Ray worked answering phones, scheduling appointments, and also helped with bookkeeping. Tr. 82:11-83:8. Houfek testified about how Ray was different after the incident, from a treatment perspective, explaining that she came in for acupuncture a week after the incident, and that “she had a big mark on her temple, and she was very upset, she was crying and very scared, didn’t really know what to do, and she had a lot of neck pain.” Tr. 83:9-19. [*21] When Ray had her acupuncture appointment on May 28th, approximately one week after the incident, Houfek recorded in his session notes that Ray was “postconcussion,” and that what she was experiencing included sensitivity to stimulus and headaches. Tr. 84:9-18. After the incident, Houfek continued to treat Ray, and stated that he was treating her mostly for neck pain and lower back pain, as well as insomnia, and “extreme emotional.” Tr. 87:4-9.

16. Houfek also testified about the changes in Ray as a volunteer after the incident. Before the incident, Houfek described Ray as “awesome,” as an employee who was “very friendly,” who “always showed up on time,” and “took initiative.” Tr. 85:7-15. But after the incident, Houfek testified that Ray was “always late,” “very very scattered,” and that “communicating with her was difficult.” Tr. 85:17-25. Houfek further testified that he had not experienced any of those problems with Ray before the incident. Tr. 86:2-4.

17. The court has considered the reports and treatments notes of the doctors, including pain management specialists and neurologists, that Ray has seen since the incident. Ex. 10. In conjunction with Dr. White’s testimony, these medical [*22] documents support the conclusion that Ray suffered a traumatic brain injury as a result of the injury she suffered on the Celadon.

18. Prior to the incident, Ray testified that “[l]ife was great,” and that she “was excited for finishing” her master’s thesis at the Citadel and continuing on for her Ph.D. Tr. 103:18-25. In addition to being in the master’s program at the Citadel, Ray was also working at the restaurant Oak Barrel four nights a week, Tr. 104:19-24, in the tasting room at the restaurant Freehouse two nights a week, Tr. 104:15-105:1. She was also volunteering with Charleston Community Acupuncture and doing research. Tr. 105:17-24. She testified that despite this busy schedule she never had any problems with attention before the incident. Tr. 106:1-11.

19. Since the incident, Ray has had suicidal ideations. Tr. 124:22-125:9. She has also been suffering from giggling issues and other inappropriate responses to stimuli, which never occurred before the incident. Tr. 127:19-25. As a result of these issues, as well as the problems in concentration and attention, her professors at the Citadel have expressed “legitimate concerns” about her ability to complete the graduate program. [*23] Tr. 127:19-25; 132:1-9. Furthermore, since the incident Ray has lost her jobs at the Oak Barrel and the Freehouse. Tr. 128:16-19. Ray attributes both of these job losses to the incident. For example, as a result of the injuries she sustained, Ray has had to ask her customers and friends to come and help her while she was at the bar. Tr. 129:1-10. Additionally, when there were stimuli such as music or “certain sounds,” Ray would run out of the bar and “leave the entire bar empty, and cry in the alley.” Tr. 129:4-11. Before the incident, Ray did not have these problems at work.

20. Since the incident, Ray has had physical and psychological problems. Physically, she has had trouble sleeping, has “nerve pain down the back of her leg,” and tension headaches. Tr. 130:13-131:21. She now also has communication issues, which have affected her interpersonal, professional, and educational goals. Tr. 136:21-137:13.

21. The court considered the medical bills that Ray has incurred, between the date of the incident and present. Pl.’s Ex. 10. Ray does not have health insurance. Tr. 123:4-7. The total medical bills for her injury totaled $20, 480.70. Pl.’s Ex. 10. By the time of trial, Ray had incurred [*24] the following expenses to treat her injuries:

a. Nason Medical Center $127.00
b. MUSC $4,654.00
c. MUSC Physicians $1,194.00
d. Dr. Waid $1,125.00
e. Dr. Kurtzman $2,050.00
f. Dr. Buncher $5,945.00
g. Charleston Community Acunpuncture $3,130.00
h. EnterpriseRx $74.82
i. Publix Pharmacy $228.36
j. Walgreens Pharmacy $1,952.52
Total: $20,480.70

2 Lesniak objects to allowing Dr. White to testify on the subject of future treatment. However, Ray disclosed Dr. White as one of her treating physicians and produced Dr. White’s medical evaluation of Ray, wherein Dr. White opined that Ray had sustained a permanent traumatic brain injury. The court is convinced that Dr. White’s written report and opinion of Ray’s permanent injury gave Lesniak adequate notice that Ray would need continued medical evaluation and treatment for her condition for the rest of her life. Ray disclosed Dr. White as an expert in neurological medicine and pain management in compliance with all relevant expert disclosure requirements and deadlines. Lesniak made the decision to decline to take Dr. White’s deposition, offer his own medical expert disputing the diagnosis of traumatic brain injury or offer an alternative future treatment plan, or to request any additional information from Dr. White regarding his evaluation of Ray. At the very least, Lesniak was on notice that as a result of the incident, Ray had already spent a significant amount of money on medical treatment including $2,255.70 on medication alone. Certainly, Ray’s medical bills were turned over during discovery. Therefore, the court overrules Lesniak’s objection.

III. CONCLUSIONS OF LAW

Based on the testimony of all of Lesniak’s crew members and all experts, including Ray’s expert Captain Wahl, Lesniak was negligent in doing a gybe maneuver when he and his crew members knew or should have known that Ray was sitting in front of the main sheet which is a dangerous place to sit. Prior to undertaking the gybe maneuver during the sailboat race, Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver. A failure to follow safety precautions, including telling Ray where to move and delaying the gybe maneuver until Ray had moved to a safe place, was [*25] a breach of Lesniak’s duty to Ray. The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.

However, Lesniak has presented sufficient evidence to support the allegation in his Answer that Ray was comparatively negligent. Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.

As a direct result of Lesniak’s failure to exercise the proper degree of skill required, Ray sustained injuries and damages, as discussed below. In making the above findings of fact, reference has been made to pertinent portions of the testimony and exhibits introduced into evidence; however, the court has taken [*26] into consideration all of the evidence presented. The court specifically finds the evidence, after considering the appearance, demeanor and qualifications of the witnesses and the testimony as a whole, supports each of its findings by a preponderance of the evidence.

A. Jurisdiction and Applicable Law

Federal admiralty jurisdiction exists where, as here, conditions of both (1) location and (2) a connection with maritime activity are satisfied. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L. Ed. 2d 1024, (1995). Admiralty jurisdiction extends to injuries involving recreational vessels such as the Celadon. See Oliver by Oliver v. Hardesty, 745 F.2d 317, 320 (4th Cir. 1984) (admiralty jurisdiction exists over a case involving a collision between a swimmer and a pleasure boat because the claim was based on an allegation of negligent navigation of the boat). The portion of the Charleston Harbor where the incident occurred constitutes navigable waters of the United States, and being struck by the main sheet of a racing sailboat has a connection to maritime activity. Accordingly, the court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1333. See Sisson v. Ruby, 497 U.S. 358, 364-65, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990).

Cases involving a tort committed on navigable waters are governed by federal admiralty law. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981) (citation omitted). However, if there is no admiralty rule for a particular [*27] issue, the court looks to state law to supply the rule of decision. Id. “This rule is especially true in negligence causes of action,” which is the cause of action that Ray asserts. Schumacher v. Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994) (citation omitted). Therefore, to the extent admiralty law is not directly on point, ordinary negligence law applies.

B. Lesniak’s Liability

To establish her claim, Ray must prove that Lesniak’s negligent operation of the Celadon harmed her. The elements of negligence are duty, a breach of that duty, proximate cause, and resulting injury. Schumacher, 850 F.Supp. at 447 (internal citations omitted).

a. Duty

It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. See Bubla v. Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986) (quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)). Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. Id. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will determine [*28] how high a degree is reasonable in each case.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (quoting Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2nd Cir. 1983)). In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.

A vessel operator also “has a duty to maintain a proper lookout by sight and by hearing” while the boat is travelling through navigable waters. Schumacher, 850 F.Supp. at 447. “This duty stems from general concepts of prudent seamanship as well as from the [regulations] governing the navigation of vessels.” Id. As a matter of prudent seamanship, “the performance of lookout duty is an inexorable requirement of prudent navigation.” Anthony v. Int’l Paper Co., 289 F.2d 574, 580 (4th Cir. 1961). Rule 5 of the Inland Navigation Rules states that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 C.F.R. § 83.05. Rule 5 perpetuates the common-law duty discussed in Anthony. Schumacher, 850 F.Supp. at 448 (citation omitted). It imposes a duty of proper lookout upon the operator of a pleasure [*29] craft such as the Celadon. See Todd v. Schneider, 2003 U.S. Dist. LEXIS 25192, 2003 WL 23514560, at *11 (D.S.C. Dec. 8, 2003). Importantly, “[w]hoever is keeping a lookout must be able to give proper attention to that task and should not . . . undertake duties that would interfere with this function.” Schumacher, 850 F.Supp. at 448 (citation omitted).

“The duty to maintain a proper look-out, whether regulatory or customary, varies with the circumstances of each situation. When circumstances demand unusual care in navigation, such care should be used.” Id. at 449-50 (internal citations omitted). That higher level of care was required here, as Ray was an invited guest aboard a sailboat involved in a race in the Charleston harbor.

Lesniak was the owner, captain, and operator of the sailboat and was in control of its operation at all times. Ray was Lesniak’s passenger and guest. Although Lesniak designated his crewmembers to administer safety instructions to the passengers, as captain, Lesniak was ultimately responsible for the safety of the crewmembers and guests. Thus, Lesniak owed Ray a duty to maintain a proper lookout at all times during the Celadon’s outing.

b. Breach

Ray offered the testimony of Captain Wahl as her liability expert with regard to safe vessel operation. Captain Wahl has extensive knowledge about the safe [*30] operation of vessels. He obtained this knowledge from his many years of personally operating vessels, obtaining credentials, holding an array of maritime positions, authoring several books, and teaching well over 18,000 students in the subject. The court finds the testimony of Captain Wahl to be credible. Lesniak offered no liability expert at trial.

Captain Wahl testified that as the captain of the Celadon at the time of the incident, good seamanship practices required Lesniak to have the ultimate responsibility to look out for persons aboard his vessel–even if he delegated some of those responsibilities to crew members. Wahl testified that this ultimate responsibility includes providing adequate instructions, warnings, guidance, or lessons to all passengers, including late arriving ones, regarding the potential dangers of movement and position on his vessel and how to avoid those dangers. He also testified that looking out for passengers aboard a vessel includes refraining from performing a gybe maneuver until ensuring that all of the passengers are seated safely out of the path of the boom and its related parts such as the main sheet. Captain Wahl further testified that, even if [*31] a passenger is told verbally to move from a certain spot before a maneuver is performed, it would be a best practice to physically ensure that the person, especially if that person is a novice passenger with no sailing experience, has been moved to a safer place on the sailboat before proceeding to perform the maneuver. It is also Captain Wahl’s opinion that only highly experienced persons should be aboard for racing events, because inexperienced persons may not be able to handle the fast-paced activities normally observed during competitive sailing.

The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care [*32] under Admiralty and South Carolina law.

c. Causation

General tort principles require a plaintiff asserting a negligence claim to show that the defendant’s breach of duty proximately caused her injuries. Schumacher, 850 F.Supp. at 451. However, a finding that the defendant breached his duty to maintain a proper lookout imposes upon him the burden of showing by clear and convincing evidence that such failure did not contribute to the accident. Id. This burden shift occurs regardless of whether the breach is viewed as a violation of Rule 5 or as breach of the common-law lookout duty. Id.

The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.

d. Comparative Negligence

Since jurisdiction is premised upon admiralty, federal common law governs. As such, the doctrine of comparative negligence applies. See, e.g., Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 407, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251, (1975)). Thus, in the context of an admiralty case, damages should “[b]e allocated [*33] among the parties proportionately to the comparative degree of their fault.” Reliable Transfer Co., Inc. 421 U.S. at 411, 95 S.Ct. 1708.

The court finds that Ray’s recovery should be reduced because Ray shares in the fault attributable as a result of the incident. Lesniak is required to prove the elements of duty, breach, causation, and injury as to Ray’s alleged negligence. Schumacher, 850 F. Supp. at 452 (citing Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610, 612 (S.C. 1973)). Namely, an individual has a “duty to exercise due care for one’s own safety.” Id. The court finds that Ray’s conduct contributed to her injuries, and reduces her damages by 25%.

The court finds that Ray was instructed by multiple crew members on multiple occasions on safety protocol, including where to sit. Ray admits that she was aware of potential dangers on the Celadon, and that she was told to “get closer together” and to “get more neighborly” in the moments immediately before the main sheet hit her. Lesniak and all four members of his crew who testified at trial indicated that there was a safety protocol, that Becker, an individual with sixty plus years of sailing experience, and her fellow crew member Truog, were delegated the duty of administering safety instructions and watching out for new, inexperienced passengers. Becker and Truog testified at trial [*34] that these were duties bestowed by their captain, Lesniak, and that they had a present-day recollection of communicating with Ray directly. The court further finds that Ray did not follow the instructions to move. Thus, Ray failed to take responsibility for herself, a duty which is imposed under the law. However, the court considers Ray’s inaction against the backdrop of Captain Wahl’s testimony that Ray as a novice passenger would not know what the safe places were on the boat without being physically guided to those places.

C. Damages

Substantive admiralty law governs all cases brought under federal admiralty jurisdiction; however, it does not automatically displace state law. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). If there is no admiralty law on point, the court may look to the laws enacted by the state legislature or declared to be law by the state’s highest courts. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981). Accordingly, the court may look to the law of the State of South Carolina in regard to the award of damages arising out of a negligence cause of action in admiralty. Id.

In a personal injury case such as this, the elements of damages potentially recoverable “include past and future medical expenses, past and future pain and suffering, past and future loss [*35] of income and earning power, disfigurement, loss of enjoyment of life, and loss of family services.” Schumacher, 850 F.Supp. at 453 (citing Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286, 291 (S.C. 1964)). Mathematical precision in ascertaining damages is not required. Brooks v. United States, 273 F.Supp. 619, 629 (D.S.C. 1967). Instead, the injured party must be awarded damages sufficiently proportionate to the injuries sustained. Drennan v. Southern Railway, 91 S.C. 507, 75 S.E. 45 (S.C. 1912).

The evidence in this case reveals Ray has suffered and will suffer such past and future damages, and she is entitled to recover for all of them.

a. Past Medical Expenses

Ray seeks to recover certain expenses for her prior medical care. At trial, she submitted a medical bill summary totaling $20,480.70 in prior care. Those expenses are recoverable, as they consist of services such as emergency medical treatment, imaging, physical therapy, psychiatric treatment, and pain management. Those expenses resulted from Lesniak’s negligence and were reasonably necessary. See Sossamon v. Nationwide Mut. Ins. Co., 243 S.C. 552, 135 S.E.2d 87, 91 (S.C. 1964). Moreover, the court is satisfied that the invoiced amounts are reasonable. See Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293, 295 (S.C. 2003) (citation omitted). Therefore, the court awards Ray $20,480.70 in past medical expenses.

b. Future Medical Expenses

Ray seeks damages to cover her anticipated future medical expenses. “[R]ecovery of damages based on future consequences of an injury may be had only if [*36] such consequences are reasonably probable or reasonably certain.” Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir. 1986). “Reasonably certain” is “a consequence ‘which follows the original act complained of in the usual, ordinary, and experienced course of events.'” Rabb v. Orkin Exterminating Co., 677 F.Supp. 424, 426 (D.S.C. 1987) (quoting Ford v. AAA Highway Express, Inc., 204 S.C. 433, 29 S.E.2d 760, 762 (S.C. 1944)). In other words, damages can be recovered only if there is “[a] greater than 50% chance that a future consequence will occur.” Lohrmann, 782 F.2d at 1160.

Dr. White, the only medical expert offered in this case, testified at trial that Ray’s condition is permanent and will require ongoing future treatment and medication. The court concludes that Ray has established a reasonable certainty that her condition is permanent and will require ongoing future treatment, including seeing a psychiatrist and a neurologist quarterly, and medication, potentially including anti-inflammatories (anti-inflammatory patch), amphetamines or an amphetamine substitute (Nuvigil), a benzodiazepine (Klonopin), a sedative-hypnotic (Belsomra), an anxiolytic (Buspar), and a selective serotonin reuptake inhibitor (Cymbalta). Dr. White testified that Nuvigil costs approximately $800.00 per month, Cymbalta costs approximately $200.00-300.00 per month, and Belsomra costs approximately $400.00-500.00 per month.

Ray’s birthday [*37] is May 8, 1985. At the time of the incident she was 29 years old. Thus, at the time of the incident, Ray had a life expectancy of 52.53 years, or 630.36 months, under S.C. Code Ann. § 19-1-150.

Adjusted for present value,3 the future medications, frequency, current cost, duration, and present value are as follows:

Medication Frequency Current Cost Duration Present Value
Nuvigil annual $9,600/yr 2018-life $330,345
Cymbalta annual $2,400-$3,600/yr 2018-life $82,585-$123,870
Belsomra annual $4,800-$6,000/yr 2018-life $165,170-$206,465

3 Lesniak contends that Ray needs an expert economist on the issue of present value of future damages and needed to present evidence at trial on the calculation of present value discounts. However, he cites no caselaw–and the court is aware of none–that there is a requirement of obtaining expert testimony on the issue of present value of future damages. The court can find no clear requirement in relevant federal case law that plaintiff must present expert evidence of the present value of her claim for future damages. The court draws guidance from the Western District of North Carolina’s recent opinion in Talley v. City of Charlotte, 2016 U.S. Dist. LEXIS 17604, 2016 WL 1212369, at *2 (W.D.N.C. Feb. 12, 2016), appeal dismissed (Aug. 31, 2016), which observed:

[t]he courts are split on whether it is necessary to introduce expert testimony to explain the concept of discounting an award to present value or to supply suggested discount and inflation rates and/or mathematical calculations. While some courts have permitted, for example, a local banker to testify as to the fair return on a safe investment, or a mathematician an actuary, or an accountant to testify concerning the procedure by which the reduction to present value should be calculated, other courts have held that expert testimony is permitted but not required, and that the jury should generally be left to its own discretion as to what discount factors should be used.

Here, the court calculated the present value discounts employing a discount rate of five percent to damages for future medical care. See Faust v. S.C. State Highway Dep’t, 527 F. Supp. 1021, 1036 (D.S.C. 1981), rev’d on other grounds, 721 F.2d 934 (4th Cir. 1983) (“I find that he is entitled to be properly compensated for his pain, suffering, damages and permanent partial disability, before and after trial, and taking into consideration future pain and suffering and discomfort, and reducing that amount to its present cash value by use of a discount rate of five (5%) percent, which this court feels is reasonable and fair.”).

Future [*38] medication costs are increased at an expected inflation rate for prescription drugs of 3.61 percent, compounded annually.4 The present value of the total future medications that Dr. White opined were reasonable and necessary for Ray’s treatment ranges in cost from $578,100 (using the low figures of the cost of medicine needed) to $660,689 (using the high figures of the cost of medicine needed).5 The court awards the average of the cost of medicine needed, and so awards $619,394.50 for future medical expenses associated with her injuries resulting from the May 21, 2014, incident.

4 This rate is based on inflation rates as reported by the Bureau of Labor Statistics for the period 1992-2016.

5 All future medication costs are discounted to present value at a rate of 5 percent, compounded annually. This is a rate that an ordinary person with average financial knowledge, with access to commonly available investment outlets, and facing the full range of financial risks might be expected to earn over a long period of time.

d. Pain and Suffering

Ray’s pain and suffering because of this incident is well documented through her deposition and trial testimony as well as her medical records. She endured months of frequent headaches, nausea, muscle pain, and back pain as a result of her physical injuries. Raven Ray seeks $75,000.00 for past and future pain and suffering. Based on the entire record, the court concludes that $50,000.00 is the appropriate amount of compensation for both past and future pain and suffering. See Schumacher, 850 F.Supp. at 453.

e. Past and Future Emotional Distress

Injured plaintiffs are entitled to recover for mental anguish and permanent emotional [*39] scarring. Steeves v. United States, 294 F. Supp. 446, 458 (D.S.C. 1968). Ray’s severe psychological and emotional injuries because of this incident are well-documented by Houfek. Testimony from Ray and Houfek, in addition to Dr. Kurtzman’s and Dr. Waid’s records, show the extent and severity of Ray’s psychological and emotional injuries proximately caused by Lesniak’s negligence. After a careful review of the entire record, the court finds $75,000.00 for her psychological and emotional injuries reasonable. Therefore, it awards judgment against Lesniak in the amount of $75,000.00 for Ray’s past and future psychological and emotional injuries.

f. Loss of Enjoyment of Life and Permanent Impairment

Next, Ray seeks $100,000.00 as compensation for losing her ability to enjoy the athletic and recreational activities in which she used to participate, as well as her loss of enjoyment of other normal activities of life. Based on the entire record, the court concludes that $100,000.00 is the appropriate amount of compensation for this loss.

Additionally, Ray is permanently impaired due to this traumatic brain injury and must be compensated for her permanent impairment. Ray’s birthday is May 8, 1985. At the time of the incident, she was 29 years old. Thus, [*40] at the time of the incident, Ray had a life expectancy of 52.53 years, or 19,173.45 days, under S.C. Code Ann. § 19-1-150. Finding a valuation of a traumatic brain injury at $20.00 per day to be reasonable, the court awards Ray $383,469.00 for her impairment. In sum, the Court awards Raven Ray $483,469.00 for her loss of enjoyment of life and permanent impairment.

g. Lost Wages/Inconvenience and Disruption of Normal Daily Life

At the time of the incident, Ray was working in the food and beverage industry and attending The Citadel to obtain a graduate degree. Because of her injuries resulting from Lesniak’s negligence, Ray was forced to miss work and experienced difficulty in completing her graduate coursework at The Citadel. The court finds $30,000.00 to be appropriate compensation for Ray’s lost wages and difficulties experienced in completing her graduate coursework at The Citadel. See Schumacher, 850 F.Supp. at 453.

D. Prejudgment Interest

Ray asks the court to add prejudgment interest to her damages. In maritime injury cases, “the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir. 1992) (citation omitted). The court may decline to award prejudgment interest when it finds that “peculiar [*41] circumstances” would make such relief inequitable. Id. This is an action instituted under the court’s admiralty jurisdiction and no peculiar or exceptional circumstances existed that would prevent Ray from recovering pre-judgment interest. This court, in its discretion, finds no such peculiar circumstances here and finds that Ray is entitled to pre-judgment interest in the amount of $22,952.44 from the date of the accident until the date of this order.

IV. CONCLUSION

Based on the foregoing, it is ORDERED that judgment be entered for Ray against Lesniak in the sum of nine-hundred and fifty-eight, and seven-hundred and fifty-eight dollars and fifteen cents $958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.

6 The tabulation of damages is $1,278,344.20 before the application of a 25% reduction in proportion to Ray’s comparative negligence. After applying the 25% reduction, the total damages award is $958, 758.15.

AND IT IS SO ORDERED.

/s/ David C. Norton

DAVID C. NORTON

UNITED STATES DISTRICT JUDGE

February 22, 2018

Charleston, South Carolina


Only a New York City bike share case create a 34-page opinion on just motions that are filed. The results are all over the board, both the defendants and the plaintiff winning issues on an electronic release

A Ten-page release was upheld as valid. But the process was full of enough holes the plaintiff is still in the game.
Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

State: New York: United States District Court for the Southern District of New York

Plaintiff: Ronald D. Corwin, et al

Defendant: NYC Bike Share, LLC, et al

Plaintiff Claims: was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice

Defendant Defenses: Release, Assumption of the Risk Immunity

Holding: Mixed

Year: 2017

Summary

Extremely complicated decision because of the number of claims of the plaintiff and the number of defendants in the case. Each defendant has a different perspective to the defenses.

The decision looks at what happens if you are not wearing a helmet while cycling and you receive a head injury as well as how assumption of the risk and open and obvious defenses are dealt with in a city and against city agencies.

The last issue, is electronic releases in New York City.

Facts

The plaintiff had signed up for a year long bike share rental agreement with New York City bike share. He did that online and, in the process, agreed to a release that was ten pages.

He rented a bike one day and was riding on the street. He felt pressure from traffic on his left. A bike share area was coming up on his right and he rode into it. The bike share locations must be on the streets in New York. He continued through the area and at the end hit a concrete wheel stop. He crashed suffering injuries.

Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging that the Citi Bike station in question was improperly designed, in-stalled, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.

He sued everyone there was in New York. Sixteen different law firms are listed in the case. The plaintiff sued:

City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program

NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system

New York City Department of Transportation

Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company

Alta Planning + Design (“APD”)

Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system

Metro Express Services, Inc. (“Metro Express”) installation

Sealcoat USA, Inc. (“Sealcoat”) installation

The lawsuit was in Federal District Court. This opinion is the magistrate’s opinion on the motions filed by the parties. Judge assign non-trial work, such as deciding motions to magistrates. After the magistrate’s opinion is filed the parties have X days to respond/object. The judge then reviews and either adopts, modifies or writes his own opinion.

When the judge rules on the magistrate’s opinion there is usually a written record of the ruling. There are two additional motions the magistrate writes about that are in the record, but no ruling from the court.

Probably the parties settled based on this ruling.

There are a lot of arguments in this 34-page ruling. I’m only going to write about the ones that are important to the outdoor recreation and cycling community.

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

The first defense discussed here is the electronic release signed by the plaintiff to become a bike share member and rent bikes.

The first issues were plaintiff did not remember signing the release, but did sign up and admitted that he probably agreed to things.

The Bike Share program could not produce a release “signed” by the plaintiff. The produced a release that was in use at the time the plaintiff signed the release and the produced testimony of a former manager to testified that the only way the plaintiff could have become a member and ride bikes was if he had agreed to the release.

The plaintiff also argued the release was Unconscionable.

A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party

The court first went into the issue of whether the release existed and was signed. The release was determined to be a “clickwrap” agreement.

Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of service. “[U]nder a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.”

The court found clickwrap agreements were enforceable.

Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.

However, the presumption of enforceability is based several factors.

The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind them-selves to contract terms

In New York the courts have already set a group of tests to determine if a clickwrap agreement is enforceable.

First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement.

Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink.

Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” (collecting cases refusing to enforce such agreements).

Special attention should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted).

Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.

Using this set of parameters, the magistrate reviewed the bike Share release and found it was not unconscionable.

The plaintiff then argued the release was not clear, coherent or unambiguous.

To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims.

This ambiguity was based on contradictions between two sections in the ten-page release. However, the court found there was no ambiguity.

Then the plaintiff argued the release was void on public policy grounds.

The plaintiff raised three arguments on why the release violated public policy. It violated New York City Administrative Code, it violated New York General Obligations law § 5-326 and it violated the cities common law duty to maintain roads.

The court found New York City administrative code could not serve as a basis for invalidating a release.

New York General Obligations law § 5-326 is the statute that restricts on who can use a release. The language of the statutes says that “operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” can’t use a release. Since the bike share program was not a facility, the release was valid.

Finally, the common law duty the city of New York had to maintain the roads did not violate the release because “…the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads.”

The release was not void based on public policy considerations.

However, the release did not apply to the city of New York because that would be contrary to public policy.

In the end the negligence claims of the plaintiff were denied because of the release. The gross negligence claims were still valid. Under New York Law and the law of most states, claims for gross negligence cannot be stopped by a release.

The next issue was how the fact the plaintiff did not wear a helmet, at the time of his injury, would be used in the case.

The defendants argued that the plaintiff not wearing a helmet should be used by the defendants to show the plaintiff was liable for his injuries, (that the plaintiff was comparative negligence), to prove assumption of the risk and to mitigate the damages he incurred.

The plaintiff argued that since there was no statutory duty to wear a helmet, then the defendants could not make their arguments.

The court applied the same rationale to wearing a bike helmet as the courts had done in New York to wearing a seat belt in a car crash. Not wearing a bike helmet, it could not be used to prove liability on the part of the plaintiff but it could be used to reduce damages.

…the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how dam-ages, if any, should be assessed.

The defendant then argued they should have qualified immunity on the plaintiff’s claims of failing to provide a bike helmet to him while renting a bike.

Immunity is granted by statute to governments and their agencies for the decisions they make. As long as the decisions are not intentional and thought out the immunity applies. The immunity then stops the courts from reviewing those decisions as long as the decisions are made under the guidelines the law has set out.

Although the city may use the fact the plaintiff did not wear a helmet to reduce any damages the city might owe to the plaintiff. The plaintiff cannot use that argument to say the city was liable for not providing helmets. Nor can the plaintiff argue the his not wearing a helmet was unreasonable and did not breach a duty of care.

Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.

Here those guidelines were made by the city in its decision to not include helmets in the rentals of the bikes.

He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.

Assumption of the Risk

The defendants moved for summary judgment because the plaintiff assumed the risk of his injuries while riding a bike. Primary assumption of the risk is defined as:

In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

The risks were also identified in the release the plaintiff signed and which had been accepted by the court.

Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.”

However, the court rejected the defense because the plaintiff at the time of his injury was not engaged in a sporting activity.

Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her con-sent to the dangers inherent in the activity may reasonably be inferred.” Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.

So, assumption of the risk only applies to recreation and sports in New York? If you are walking down a sidewalk and see a hole in the sidewalk, on your way to work you don’t assume the risk if you fall into the hole?

The next argument by the defendants are not liable because the danger the plaintiff encountered was open an obvious.

The Open and Obvious defense seems fairly simple. If the thing or condition that injured the plaintiff was open and obvious then the plaintiff cannot sue for his injuries. It is very similar to an assumption of the risk defense.

A defendant has “no duty to protect or warn against an open and obvious condition which is not inherently dangerous. Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion

The defendants argue the concrete wheel stop was open and obvious.

…because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.

The plaintiff’s argument, based on the testimony of his expert witness was the wheel stop was not open and obvious because it was too big and was located in the travel lane had been camouflaged, in the way it was put in and painted.

The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.”.

How something could be too big and then not be open and obvious is confusing. This was enough for the court to deny motion for summary judgment based on the open and obvious theory.

Gross Negligence of the Bike Share defendant

Gross negligence under New York law is

…conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” “In order to establish a prima facie case in gross negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.

The plaintiff’s expert opined that the defendants ignored sound engineering practices when creating and installing the wheel stop and that it was foreseeable that the injuries would occur when the wheel stop was placed in the cycling path. Based on that language, the court found that the actions of the defendants could be defined as gross negligence.

The defendant won most of the decisions, however the plaintiff won enough and won significant ones that allowed the litigation to continue.

So Now What?

The final paragraph of the decision has a review of all decisions for the plaintiff and the defendants if you would like to keep a tally. However, there are several decisions concerning plaintiffs that were not reviewed here because they had no relationship to outdoor recreation or the legal issues commonly faced in outdoor recreation.

Obviously, the injuries to the plaintiff are significant to bring such forces to this litigation to justify this much work. The amount of effort put into prosecuting a case for a plaintiff can SOMETIMES be an indication of the damages to the plaintiff when those damages are not identified in the decision.

More importantly, the legal issues of suing New York City and its agencies are far more complex then found in most cities.

There are some interesting points worth noting. You could guess that the judge thought a ten-page release was long since she pointed it out. However, you cannot argue that your release is too long. Especially since electronically they do not have a length that is measured so easily.

Not wearing a helmet can be an issue in cycling and possibly skiing, even though the effectiveness of wearing one can be disputed. I suspect the next step would be to find a helmet expert by the plaintiff to argue that a helmet would not have prevented the damages the plaintiff received and the defendants will find an expert to argue the opposite.

The failure to provide proof that the plaintiff signed the release was overcome. However, design your system so you don’t have to jump through these hurdles. Crate a system that matches the signing to the credit card or other way of showing that on this date at this time the person entered his name and address, credit card number and clicked on this button saying he accepted the release. Then you add, his credit card would not have been charged unless he agreed to the release.

If you are designing bike share locations, do so in a way that people on bikes can assume they can ride through them.

What do you think? Leave a comment.

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

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

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

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

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

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

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

Plaintiff Claims: Negligence Per Se

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

Holding: For the Plaintiff

Year: 2007

Summary

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

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

Facts

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

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

The defendants relied on four defenses:

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

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

(3) Florida statutory law does not apply; and

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

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

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

The Florida statutes in question were:

Florida Statute § 327.39

§ 327.39. Personal watercraft regulated.

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

The second statute was Florida Statute § 327.54

§ 327.54. Liveries; safety regulations; penalty.

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

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

1. Operational characteristics of the vessel to be rented.

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

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

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

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

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

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

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

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

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

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

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

Don’t get into business without knowing the law.

More articles on Negligence Per Se

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

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

    

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com

© 2018 Recreation Law    Rec-law@recreation-law.com    James H. Moss

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Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

Ronald D. Corwin, et al., Plaintiffs, -against- NYC Bike Share, LLC, et al., Defendants.

14-CV-1285 (SN)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034

March 1, 2017, Decided

March 1, 2017, Filed

SUBSEQUENT HISTORY: Reconsideration denied by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 53812 (S.D.N.Y., Apr. 7, 2017)

Summary judgment granted by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 57254 (S.D.N.Y., Apr. 13, 2017)

CORE TERMS: bike, station, wheel, helmet, bicycle, summary judgment, street, cyclist’s, parking, user, roadway, lane, public policy, matter of law, traffic, wear, installation, riding, notice, negligence claims, qualified immunity, affirmative defenses, municipality, contractor, installed, recreational, planning, genuine, rider, safe

COUNSEL: [**1] For Ronald D. Corwin, Beth Blumenthal, Plaintiffs: Martin William Edelman, LEAD ATTORNEY, Edelman & Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT; Neil R. Finkston, Law Office of Neil R. Finkston, Great Neck, NY.

For NYC Bike Share LLC, Alta Bicycle Share, Inc., Defendants, Cross Claimants, Cross Defendants: Peter W. Beadle, Law Offce of Vaccaro & White, LLP, New York, NY; Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.

For City of New York, Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Howard Martin Wagner, Trief and Olk, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.

For Alta Planning + Design, Inc., Alta Planning Design Architecture of New York, PLLC, Defendants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY; Katherine Buchanan, The Law Firm of Hall & Hall, LLP, Staten Island, NY.

For MetroExpress Services, Inc., Defendant: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For Sealcoat USA, [**2] Inc., Defendant, Cross Defendant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY; Brian L. Battisti, Morrison Mahoney, LLP(NYC), New York, NY.

For Sealcoat USA Inc., ADR Provider: Mitchell John Baker, LEAD ATTORNEY, Baker, Leshko, Saline & Blosser, LLP, White Plains, NY.

For Metro Express, Inc., Interested Party: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For New York City Department of Transportation, Cross Claimant, Cross Defendant: Kimberly Kristen Brown, Hoey, King,Epstein, Prezioso & Marquez, New York, NY.

For NYC Bike Share LLC, Cross Claimant, Cross Defendant: Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.

For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY.

For Alta Planning Design, Inc., Alta Planning Design Architecture of New York, PLLC, Cross Claimants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY.

For Beth Blumenthal, Cross Defendant: Martin William Edelman, LEAD ATTORNEY, Edelman & [**3] Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT.

For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.

For MetroExpress Services, Inc., MetroExpress Services, Inc., Cross Defendant, Cross Claimants: Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.

For Sealcoat USA, Inc., Cross Claimant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY.

JUDGES: SARAH NETBURN, United States Magistrate Judge.

OPINION BY: SARAH NETBURN

OPINION

[*480] OPINION & ORDER

SARAH NETBURN, United States Magistrate Judge:

On October 25, 2013, Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging [*481] that the Citi Bike station in question was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and [**4] professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.1

1 As Blumenthal’s claims depend entirely on the viability of Corwin’s causes of actions, the two claims are referred to in shorthand as “Corwin’s” throughout the text of the opinion. Where the Court grants summary judgment or partial summary judgment to defendants on certain of Corwin’s claims, Blumenthal’s claims are dismissed as well. Vega-Santana v. Nat’l R.R. Passenger Corp., 956 F. Supp. 2d 556, 562 (S.D.N.Y. 2013) (“Where the primary cause of action is dismissed on summary judgment, the loss of consortium claim must be dismissed as well.”).

On February 27, 2014, Corwin brought claims against three defendants: the City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program; NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system, and the New York City Department of Transportation (“DOT”). ECF No. 1, Compl. On December 31, 2014, Corwin amended his complaint to remove the DOT and add three additional defendants: Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company; and Alta Planning + Design (“APD”) and Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system. ECF No. 27, First Am. Compl. After conducting significant discovery, Corwin moved for and was granted leave to amend his complaint to join two additional defendants, Metro Express Services, Inc. (“Metro Express”) and Sealcoat USA, Inc. (“Sealcoat”), both contractors who are [**5] alleged to have participated, in violation of the station’s design plan, in the installation of the wheel stop struck by Corwin. ECF No. 192, Second Am. Compl.

All of the defendants move separately for summary judgment on a variety of grounds.2 All defendants argue that the condition was open and obvious and that Corwin’s negligence claims generally fail as a matter of law. The City, NYCBS, and APD argue that Corwin’s common-law negligence claims were released by the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”) that he had to sign as a condition of Citi Bike membership, and that they are barred by the doctrine of primary assumption of the risk. APD, Metro Express and Sealcoat argue that, as third-party entities in a contractual relationship with Corwin, they owed him no duty of care. APD additionally argues that the Citi Bike station’s deviation from the design is an absolute bar to liability, and that there was no causation between its design and Corwin’s injury. The City also contends that Corwin’s claims are barred due to the doctrine of qualified immunity and its lack of written notice of the condition pursuant to a municipal notice statute.

2 As their liability is exclusively a product of being a parent company of a wholly owned subsidiary, Alta Bicycle Share, Inc./Motivate, Inc. moves for summary judgment together with NYCBS, and APD moves together with APDNY. For the sake of brevity, these motions are referred to as the “NYCBS” and “APD” motions, respectively.

For his [**6] part, Corwin moves for partial summary judgment on two issues. First, he argues that the Release Agreement is unenforceable on numerous statutory, public policy, and contract formation grounds, and that defendants’ affirmative defenses [*482] relying on the Agreement should be dismissed as a matter of law. Second, he contends that the fact that he was not wearing a helmet at the time of the accident is irrelevant as a matter of law to issues of assumption of the risk, comparative fault, or failure to mitigate damages, and therefore defendants’ affirmative defenses relying on this argument should be dismissed.

For the following reasons, the cross-motions for summary judgment are GRANTED in part and DENIED in part. Corwin’s motion to dismiss defendants’ affirmative defenses relying on the Release Agreement is DENIED as to NYCBS; the Agreement is enforceable as a matter of law as to NYCBS. Corwin’s motion to dismiss the affirmative defenses relating to the Release Agreement is GRANTED as to the City because a contractual waiver of the City’s non-delegable duty to maintain public thoroughfares would be contrary to public policy. Corwin’s motion to dismiss defendants’ affirmative defenses relating [**7] to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED; as stated above, the Release Agreement is ineffective to waive Corwin’s claims at to the City, and the City has not demonstrated its entitlement to judgment as a matter of law on qualified immunity, notice, or other grounds. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable as to NYCBS, Corwin’s common-law negligence claims are barred, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED because APD and APDNY did not owe any duty to Corwin. Accordingly, APD and APDNY are dismissed from this case. Metro Express and Sealcoat’s motions for summary judgment are DENIED because a genuine dispute of material fact exists as to whether they owed Corwin a duty of care under applicable New York law.

BACKGROUND

I. History of the Citi Bike Program

Beginning in 2009, the City of New [**8] York began to study the feasibility of installing a bike share system in and around City streets, located in curbside parking lanes, on sidewalks, and near public spaces and parks. ECF No. 293, City’s Rule 56.1 Statement (“City St.”) ¶ 2. On April 10, 2012, the City and NYCBS entered into an agreement for the design, construction, operation, maintenance, and publicizing of “Citi Bike,” a network of self-service bike share stations with publicly available bicycles. ECF No. 310, Corwin’s Rule 56.1 Statement (“Corwin St.”) ¶ 2. The system became operational in May 2013. City St. ¶ 5; ECF No. 317, NYCBS’s Rule 56.1 Statement (“NYCBS St.”) ¶ 1.

The City-NYCBS contract required NYCBS to design and install on-street bike parking stations “with appropriate protections and markings from adjacent parking and moving traffic. . . . [including] non-permanent bollards and paint markings.” City St. ¶ 31. The contract also noted that all protections and markings were to be preapproved by the DOT’s Division of Traffic. Id.

The design for the Citi Bike stations was modeled in part on the City’s previous experience with “bike corrals,” which were also placed in parking lanes and were designed by the DOT’s Highway Design Unit and [**9] Pedestrian and Bicycle Group. City St. ¶¶ 41-42. These corrals had many elements that would ultimately be integrated [*483] into the Citi Bike stations, such as wheel stops, paint marking and bollards. Id. ¶ 42.

At the time that the NYCBS contract was signed with the City, APD and APDNY were subsidiaries of Alta Bicycle Share, Inc., NYCBS’s parent company. Id. ¶ 48. APD assembled a team of architects, engineers, and designers to collaborate with the City on station design. Id. ¶¶ 49-50. Using a bike corral on Smith and Sackett Street as an exemplar, the APD and the City developed “Station Siting Guidelines” that included the use of unpainted, concrete wheel stops. Id. ¶¶ 51-57. Though the City originally approved the use of rubber wheel stops, it instructed NYCBS to replace them with concrete wheel stops because the rubber stops were not sufficiently durable. Id. ¶ 96. The wheel stops were considered by APD to be necessary to prevent damage to the station equipment by encroaching vehicles. Id. ¶ 58.

The final design for Citi Bike stations situated in parking lanes included white thermoplastic markings and three-foot tall, reflective, flexible delineators on or near the markings. Wheel stops [**10] were to be used in the stations to protect the station equipment. Id. ¶¶ 64-66. These elements were collectively referred to as “street treatment.” Id. ¶ 81. While NYCBS installed the station equipment directly, it contracted the installation of street treatment to Metro Express, allegedly without the City’s awareness. Id. ¶ 83. MetroExpress, in turn, subcontracted this work to another entity, Sealcoat, allegedly without the awareness of either the City or NYCBS. Id. ¶¶ 85-86.

The City considered, but chose not to mandate that Citi Bike riders wear helmets. It also did not provide helmets for Citi Bike riders on demand. Id. ¶ 8. The City came to this conclusion because (a) New York law did not mandate that adult cyclists wear helmets and it did not want to promote different standards for Citi Bike riders and other cyclists as a matter of public policy; (b) it believed, based on studies conducted in other cities, that mandatory helmet laws decreased bicycle ridership in general and bike share system use in particular; (c) certain statistics indicated that mandatory helmet laws actually decreased cyclist safety by reducing the number of cyclists on the road; and (d) research suggested [**11] that helmeted cyclists tended to ride more recklessly than those without helmets. Id. ¶¶ 9-16; Corwin St. ¶ 10. The City also specifically evaluated the feasibility and wisdom of instituting a public helmet distribution system, but ultimately concluded that there were numerous logistical barriers to such a system, such as hygiene, the fact that the structural integrity of helmets would be compromised if they were involved in an accident, and lack of proper fitting and sizing capabilities. City St. ¶¶ 18-22. The City further considered what it viewed as unfavorable experiences with such systems in Seattle, Boston, and Melbourne, Australia. Id. ¶ 25. The City did, however, provide annual Citi Bike members with discounted vouchers for helmets and expanded its helmet giveaway and fitting programs. Id. ¶¶ 27-28.

II. Design and Installation of Citi Bike Station on East 56th Street and Madison Avenue

The station where Ronald Corwin’s accident occurred was located at the intersection of East 56th Street and Madison Avenue. Id. ¶ 98. The City issued a permit to NYCBS for the installation of the station on July 22, 2013, and the station equipment was installed on July 30, 2013. Id. ¶¶ 103-04. [**12] The City approved APD’s design drawing of the station on August 6, 2013, including all street treatment. Id. ¶ 100. The approved design had only one wheel stop at the west end of the station, [*484] no thermoplastic striping within the boxes at the ends of the station, a station width of eight feet, and a total of six delineators. ECF No. 301, Alta Planning and Design Rule 56.1 Statement (“APD St.”) ¶ 30. None of the site plan drawings, including the approved drawing, contained a wheel stop at the east end of the station closest to Madison Avenue.

The street treatment at the East 56th Street and Madison Avenue station was installed on or about October 22, 2013. APD St. ¶ 31. Notwithstanding its absence on the approved plan, a wheel stop was installed at the east end of the station as well, and the station did not conform to the approved plan in several other respects: the station footprint was made wider by the installation of thermoplastic striping more than eight feet in width, additional delineators were added, and cross-hatched striping was installed on either end of the station underneath the wheel stops. Id. ¶ 34. Though this is disputed by the defendants, Corwin argues that the wider footprint [**13] is relevant because, as it provided less clearance between the edge of the station and moving traffic, it would have encouraged a cyclist to use the station itself as a temporary riding lane. ECF No. 335, Decl. of Pl.’s Exp. James E. Green, ¶¶ 56-58. The City denies approving the installation of a second wheel stop at this site, and claims that its records do not show that it had written notice regarding the additional wheel stop. City St. ¶¶ 102, 106, 108.

The entity responsible for installing the wheel stop is contested; Metro Express and Sealcoat contend that an October 18, 2013 email from NYCBS informed them only of the need for repairs to the station, and that after Sealcoat representative Ryan Landeck visited the station on October 22, 2013, he reported that there was nothing to be done at the station in a October 24, 2013 email to Metro Express. ECF No. 368-3, Landeck Depo. at 41, 51; ECF No. 368-4, Landeck Oct. 24, 2013 E-mail. Metro Express further contends that the City had often instructed NYCBS, who in turn had instructed Metro Express to install “Supplemental Street Treatments” not depicted on station plans, and that such supplemental installations included second wheel [**14] stops. ECF No. 368-8, May 17, 2013 Email; ECF No. 335-20, Strasser 06/28/16 Depo. at 48-51. Metro Express alleges that on July 17, 2013, and October 9, 2013, it was specifically ordered by NYCBS to install a second wheel stop not depicted on station plans at three stations around the network. ECF 368-10; 368-11; 368-12; 368-13; 368-14. There is no direct evidence in the record, however, that such a request was ever issued for the East 56th Street and Madison Avenue station.

III. Ronald Corwin’s Citi Bike Membership and Release Agreement

Ronald Corwin signed up online for an annual Citi Bike membership on June 25, 2013. Corwin St. ¶ 15. Corwin does not remember the details of the process, and did not recall clicking on or reading the Bicycle Rental, Liability Waiver, and Release Agreement as a condition of membership. Id. ¶ 18. Nevertheless, he did admit in deposition testimony that “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike Pass.” NYCBS St. ¶ 21. NYCBS has not, however, produced a version of the Agreement dated contemporaneously to Corwin’s registration, or Corwin’s actual electronic signature. Corwin St. ¶ 22.

While the applicability and enforceability [**15] of the Release Agreement is disputed by the parties, there is no serious dispute as to its content. NYCBS has produced an agreement dated July 25, 2014, and Justin Ginsburgh, former General Manager of [*485] NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, testified that this agreement was active on the date that Corwin became a member. ECF No. 316, Ginsburgh Decl. ¶¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl. ¶¶ 2-3; ECF 316-1, Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). Ginsburgh attested that it would be impossible to become a Citi Bike member without first being shown the Release Agreement in a scrollable text box and then clicking a box stating “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in (sic) User Agreement.” NYCBS St. ¶¶ 17-18; City St. ¶¶ 118-20.

The Release Agreement contains several provisions, which are reproduced below in relevant part:

Section 6. Releases:

In exchange for You being allowed to use any of the Services, Citi Bike bicycles, Stations, Bike Docks, or related information, You . . . do hereby fully and forever release [**16] and discharge all Released Persons for all Claims that You have or may have against any Released Person, except for Claims caused by the Released Person’s gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended 3rd beneficiaries of such releases.

“Claims” is defined in the Release Agreement as “any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings [or] damages that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information . . . .” “Released Persons” is defined in the Agreement, as relevant, as including: “(i) NYCBS and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns [and] (ii) the City of New York.”

Section 7. Disclaimers:

You do hereby acknowledge and agree that your use of any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, is at your sole risk. . . . [**17] All of the services, Citi Bike bicycles, stations, bike docks, or related information are provided “as is” and “as available” (and you rely on them solely at your own risk). . . . You assume full responsibility and risk of loss for using any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, and NYCBS and all other released persons are not liable for any claim attributable to any of the foregoing.

Section 8. Limited Liability:

You do hereby acknowledge and agree that, except as may otherwise be limited by New York General Obligation Law Section 5-326, NYCBS and all other released persons are not responsible or liable for any claim, including those that arise out of or relate to (A) any risk, danger or hazard described in the Agreement, (B) Your use of or inability to use, any of the services, Citi Bike bicycles, stations, bike docks, or releated (sic) information, (C) your breach of this agreement or your violation of any law, (D) any negligence, misconduct, or other action or inaction by you, (E) your failure to wear a bicycles helmet while using Citi Bike bicycle, or (F) any negligence, misconduct, or other action or inaction of any third party. You do hereby waive all claims with respect to any [**18] [*486] of the foregoing, including those based in contract, tort (including negligence), statutory, or other grounds, even if NYCBS or any of the other released persons has been advised of the possibility of such claims. The total liability of NYCBS and all other released persons for all claims, including those based in contract, tort (including negligence), statutory, or other grounds, is limited to the sum of $100.

Section 9. Assumption of Risk by Member:

Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to Member or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.

IV. Ronald Corwin’s Ride and Accident

At 10:57 a.m. on October 25, 2013, Ronald Corwin picked up a Citi Bike at a station located on the southeastern corner of 6th Avenue and East 56th Street. From there, he travelled in the direction of Grand Central Station. Corwin St. ¶ 25; NYCBS St. ¶ 32. He was not wearing a helmet. Corwin St. ¶ 26; City St. ¶ 137. Corwin proceeded eastbound in the [**19] traffic lane on East 56th Street, with vehicular traffic proceeding to his left. NYCBS St. ¶ 34. Because Corwin claimed to have been “under pressure” from the vehicular traffic, he turned into the Citi Bike station on East 56th Street and Madison Avenue. Id. ¶ 35. The station area was indicated by a perimeter of 4 inch white thermoplastic stripes on the asphalt roadway, and three foot tall white flexible delineators with gray reflective tape spaced approximately every 10 feet along the thermoplastic striping. Id. ¶ 36. At either end of the station, unpainted concrete wheel stops measuring 5 feet, 10.5 inches long by five inches high, were installed on the roadway. Id. ¶ 40. These wheel stops were framed by a box of white thermoplastic striping with diagonal cross-hatching, staked out by three-foot tall flexible delineators. Id. ¶ 41. While he was travelling within the station “envelope,” the front wheel of Corwin’s Citi Bike hit the concrete wheel stop installed near the crosswalk at the Madison Avenue end of the station, causing him to crash onto the pavement and sustain serious injury. Corwin St. ¶ 26.

ANALYSIS

I. Standard of Review

Under Federal Rule of Civil Procedure 56(a), the court “shall grant summary judgment if [**20] the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party bears the initial burden of establishing that there are no material facts in dispute and must provide “affirmative evidence” from which a factfinder could return a verdict in its favor. Id. at 257. Then “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to [*487] deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1224 (2d Cir. 1994).

In determining whether summary judgment is appropriate, the court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference [**21] could be drawn in favor of the nonmoving party. . . .” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). To create a disputed fact sufficient to deny summary judgment, the non-moving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible. . . .” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Instead, the response “must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation and internal quotation marks omitted).

II. Waiver and Release

It is undisputed that in order to become a member of Citi Bike, Corwin would have been required to assent to a release of claims as set forth in the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). This Agreement covered “any and all claims, injuries, demands, liabilities, causes of action (including statutory, contract, negligence, or other tort theories) . . . that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information or (b) Your use of any of the foregoing.” It required Corwin to “discharge all Released Persons for all Claims that You have or may have against any Released Person, except [**22] for Claims caused by the Released Person’s gross negligence or willful misconduct.” ECF 316-1, Release Agreement. As relevant here, the Agreement expressly included NYCBS and the City of New York, as well as all of NYCBS’s “owners, managers, affiliates, employees, agents, representatives, successors, and assigns” within the definition of “Released Persons.” Id.

Corwin moves for partial summary judgment to strike the City and NYCBS’s affirmative defenses based on the Release Agreement, arguing that the Agreement is ambiguous, contrary to law, and/or void as a matter of public policy. For their part, the City and NYCBS move for summary judgment arguing that Corwin’s negligence claims against them are waived by the release, with the exception of those sounding in gross negligence. Though it is not expressly named in the release, APD also argues that the claims against it are released because of its relationship to NYCBS.

As a threshold issue, the Court considers if there is a genuine dispute as to whether Corwin signed a release and, if so, its scope. Corwin argues that because defendants have failed to produce an actual copy of the Release Agreement with his electronic signature, or a [**23] copy of the Agreement as it existed when he became an annual member, defendants cannot demonstrate that he signed the waiver at all. Defendants have produced a declaration from Justin Ginsburgh, former General Manager of NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, that describes the membership process and states that Corwin would have [*488] had to agree to the terms of the Agreement in order to become a member. ECF No. 316, Ginsburgh Decl., ¶¶ 7-9. Ginsburgh also declares that the Release Agreement appended to his declaration, dated July 15, 2014, was a “true and complete copy of the User Agreement that was in effect in May 2013 when Mr. Corwin became a Citi Bike member.”3 Id. at ¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl., ¶¶ 2-3 (“The User Agreement . . . was fully in effect when plaintiff Ronald Corwin obtained his Citi Bike membership on June 25, 2013.”). Ginsburgh had previously noted in deposition testimony, however, that he was no longer in his General Manager position as of April 1, 2014, and therefore “[didn’t] know if any changes occurred [to the membership signup] after that.” ECF No. 360-6, Justin Ginsburgh Depo. [**24] at 463. Corwin stated in deposition testimony that he completed the membership application and “signed whatever it is [he] had to sign in order to get [his] Citi Bike pass,” but did not remember the contents of the Agreement or whether he had read it. ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.

3 The first Ginsburgh Declaration inaccurately references Corwin becoming a Citi Bike member in May 2013; in fact, Corwin became a Citi Bike member on June 25, 2013.

Corwin has failed to “set forth specific facts demonstrating that there is a genuine issue for trial,” Wright, 554 F.3d at 266, as to the existence and scope of the Agreement. Defendants have produced declaration testimony from Justin Ginsburgh, and Corwin has challenged the credibility of those statements. He has not, however, despite extensive discovery, introduced any evidence that there was an agreement with different terms in effect when Corwin became a Citi Bike member, or even any evidence that raises doubt as to whether the Agreement provided by defendants was in effect. Nor has Corwin provided any evidence that he was somehow able to sign up for his Citi Bike membership without following the process described by Ginsburgh, which required him to manifest assent to the Release Agreement. Therefore, Corwin has failed to raise a genuine dispute of material fact regarding the existence of a contract between [**25] the parties. Accordingly, whether or not Corwin’s claims are barred by the Release Agreement shall depend solely on the effectiveness of Corwin’s assent under the circumstances, and the enforceability of the waiver provisions as to the various defendants.

A. Unconscionability Analysis in Online “Clickwrap” Contracts

The first question for the Court’s consideration is whether, absent any overarching questions of statutory or common law public policy, the contract is enforceable on its own terms or whether, as Corwin argues, it is an “unconscionable and unenforceable contract of adhesion.” A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10, 534 N.E.2d 824, 537 N.Y.S.2d 787 (1988) (internal quotation marks and citations omitted); see also Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 207 (2d Cir. 1999).

The parties agree that the contract in question is a “clickwrap” agreement. Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of [*489] service. “[U]nder a clickwrap arrangement, [**26] potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2d Cir. 2004). Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.'” Meyer v. Kalanick, No. 15-CV-9796 (JSR), 199 F. Supp. 3d 752, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *6 (S.D.N.Y. July 29, 2016) (citing Cullinane v. Uber Techs., Inc., No. 14-CV-14750 (DPW), 2016 U.S. Dist. LEXIS 89540, 2016 WL 3751652, at *6 (D. Mass. July 11, 2016)). While the Court of Appeals has not categorically ruled on the issue, it has strongly implied that such contracts are presumptively enforceable. See, e.g., Starkey v. G Adventures, Inc., 796 F.3d 193, 197 (2d Cir. 2015) (noting that case would have been “simpler to resolve had [defendant] used a ‘clickwrap’ mechanism to provide reasonable notice and to obtain [plaintiff’s] assent”). Accordingly, most lower courts have enforced such contracts, absent extraordinary circumstances. See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 397 (E.D.N.Y. 2015) (collecting cases); Centrifugal Force, Inc. v. Softnet Commc’n, Inc., No. 08-CV-5463 (CM), 2011 U.S. Dist. LEXIS 20536, 2011 WL 744732, at *7 (S.D.N.Y. Mar. 1, 2011) (“In New York, clickwrap agreements are valid and enforceable contracts.”).

Nevertheless, a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability [**27] of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind themselves to contract terms.” Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002) (Sotomayor, J.). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways.” Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *8.

In Berkson, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide this inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement. Berkson, 97 F. Supp. 3d at 401 (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014)). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink. Id. (citing Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-CV-7654 (HLH), 2003 U.S. Dist. LEXIS 6483, 2003 WL 21406289, at *2 (C.D. Cal. Mar. 7, 2003)). Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” Id. at 401-02 (collecting cases refusing to enforce such agreements). Special attention [**28] should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. Id. at 402; see also Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *10 (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text [*490] about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted). Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.

In this case, NYCBS represents that “before the prospective member can proceed to pay for the membership, each person is shown the . . . ‘User Agreement.’ The User Agreement is displayed on the page in its own scrollable text box, which may also be opened in a new window for ease [**29] of viewing and printing.” ECF No. 316, Ginsburgh Decl., at ¶ 7. The “continue” button allowing Corwin to provide his payment information would not activate until Corwin clicked on a statement reading “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in [sic] User Agreement.” Id. at ¶¶ 8-9; Release Agreement, ECF No. 316-1 at 56. The Release Agreement itself, roughly 10 pages in length, contained a bold-faced and underlined section in larger font titled “Releases; Disclaimers; Limited Liability; Assumption of the Risk.” The text of the sections in question are in normal-sized font. Though Corwin stated that he had no specific recollection of reading and signing the Release Agreement, he did admit “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike pass.” ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.

Applying the considerations in Berkson, the Release Agreement is enforceable. The full scrollable text of the agreement was available on the same page a user must utilize to register, requiring no clicking of hyperlinks, and the user cannot continue to input his payment information until [**30] he signals assent to the agreement by taking the affirmative step of clicking a box. While it is possible to imagine clearer signaling of the importance of the waiver provisions to an unwary or unsophisticated consumer, the terms are not hidden or buried in an obscure part of the website, but rather are in plain view. Accordingly, the Release Agreement is not unconscionable, and Corwin is not entitled to strike the City and NYCBS’s affirmative defenses on this basis.

B. Ambiguity

To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims. See, e.g., Spancake v. Aggressor Fleet Ltd., No. 91-CV-5628 (DLC), 1995 U.S. Dist. LEXIS 7319, 1995 WL 322148, at *4 (S.D.N.Y. May 26, 1995). Corwin argues that the waiver is unenforceable due to ambiguity, finding a conflict between Section 8 (“Limited Liability”), which purports to release defendants from claims arising from riders’ “failure to wear a bicycle helmet while using a Citi Bike bicycle,” and Section 5, which does not list failing to wear a helmet as one of 11 “Prohibited Acts.” ECF 316-1, Release Agreement.

There is plainly no contradiction between Section 5 and Section 8. Section 5 lists actions, such as defacing a Citi Bike bicycle, transferring a bicycle to a non-member, or using a cellphone while riding that [**31] could presumably lead to contractual consequences for the member. Not wearing a helmet is not prohibited, which is also consistent with New York law allowing adult cyclists to ride without a helmet. See infra Part III.

Section 8 instead provides a non-exhaustive list of circumstances for which the [*491] contract seeks to limit liability. On its face, the fact that this list is not identical to that in Section 5 presents no contradiction, as they are presented for entirely different purposes.4 Moreover, the examples in Section 8 are meant only to illustrate some of the circumstances under which liability is to be limited; the section refers to limited liability for “any claim, including those that arise out of or relate to . . . your failure to wear a bicycle helmet while using Citi Bike bicycle.” Id. (emphasis added).

4 On wholly separate grounds, in Part III of its opinion, the Court grants Corwin summary judgment on Defendants’ affirmative defenses that Corwin’s failure to wear a bicycle helmet relieves them of liability because as a matter of New York law, the failure to wear a helmet goes only to the question of mitigation of damages. This does not, however, affect the clear and unambiguous nature of the waiver provisions.

As such, the Release Agreement is not void due to ambiguity.

C. Unenforceability on Public Policy Grounds

New York law “frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny.” Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979). Therefore, an exculpatory contract must express “in unequivocal terms the [**32] intention of the parties to relieve a defendant of liability for the defendant’s negligence.” Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); Roane v. Greenwich Swim Comm., 330 F. Supp. 2d 306, 321 (S.D.N.Y. 2004) (finding that appearance of the actual word “negligence” was significant in determining whether exculpatory contract was to be enforced). But “even an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced . . . if it is found to violate public policy . . . .” Ash v. New York Univ. Dental Ctr., 164 A.D.2d 366, 369, 564 N.Y.S.2d 308 (1st Dep’t 1990).

Public policy “is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Lubov v. Horing & Welikson, P.C., 72 A.D.3d 752, 753, 898 N.Y.S.2d 244 (2d Dep’t 2010) (citation omitted); see also Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216, 222, 872 N.Y.S.2d 578 (3d Dep’t 2009) (defining New York public policy as “the law of the [s]tate, whether found in the Constitution, the statutes or judicial records”) (citation omitted). Parties may, however, “agree to give up statutory or constitutional rights in a contract, as long as public policy is not violated.” J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 113, 119, 980 N.E.2d 940, 957 N.Y.S.2d 275 (2012).

Corwin argues that the Release Agreement violates three sources of public policy–New York City Administrative Code § 19-110, which provides that municipal permit holders may be held liable for their own negligence, New York General Obligations Law § 5-326, which invalidates exculpatory clauses in agreements with operators of recreational facilities, and [**33] the City’s non-delegable common-law duty to maintain the public streets.

i. New York City Administrative Code § 19-110

New York City Administrative Code (“NYCAC”) § 19-110 reads:

Liability for damage. In all cases where any person shall engage in any activity for which a permit is required pursuant to [the subchapter concerning streets [*492] and sidewalks], such person shall be liable for any damage which may be occasioned to persons, animals, or property by reason of negligence in any manner connected with the work.

Corwin argues that this statute represents a “public policy” intended to provide a “statutory remedy” against all persons who negligently perform work subject to the issuance of a permit. He notes that there was no explicit reference to waiving any rights or remedies under NYCAC § 19-110 in the Release Agreement, but even if there were, such a waiver would be unenforceable because of an alleged public policy to protect the public and ensure a remedy against any person acting under a permit to individuals injured by their negligence.

Case law regarding § 19-110 (and its predecessor provision, § 19-107) is sparse, and no court has held that § 19-110 provides a statutory right at all–much less a non-waivable statutory right elevated to [**34] the status of public policy. Instead, the available case law deals exclusively with whether the statute can be invoked as a basis for the City to seek indemnification, as opposed to contribution, from a negligent municipal contractor. See City of New York v. Consol. Edison Co., 198 A.D.2d 31, 31-32, 603 N.Y.S.2d 47 (1st Dep’t 1993) (finding that statute did not provide a basis for indemnification, but rather only that a contractor was responsible for its own negligence); Petrucci v. City of New York, 167 A.D.2d 29, 34, 569 N.Y.S.2d 624 (1st Dep’t 1991) (concluding that statute did not provide a basis for indemnification of the City, but only an “intent to render the contractor responsible for those damages actually caused to injured third parties or property by its own negligence or carelessness”); Libardi v. City of New York, 201 A.D.2d 539, 540-41, 607 N.Y.S.2d 717 (2d Dep’t 1994) (same).

This limited case law appears to do no more than clarify, in line with common-law negligence principles, that the City may seek contribution for damages to third parties occasioned by a negligent contractor or property owner conducting work pursuant to a municipal permit. It is plainly insufficient to constitute an overarching public policy guaranteeing Corwin the right to sue any contractor notwithstanding a contractual waiver. Indeed, Corwin has cited no case in which the statute was interpreted to provide a plaintiff a private right of action or a “statutory [**35] remedy” differing in any way from a common-law negligence claim. Accordingly, NYCAC § 19-110 cannot serve as a basis for invalidating the Release Agreement.

ii. New York General Obligations Law § 5-326

New York has a statutory restriction that invalidates exculpatory clauses or agreements between users and owners and operators of recreational facilities. N.Y. General Obligations Law (“GOL”) § 5-326 provides:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be [*493] deemed to be void as against public policy and wholly unenforceable.

The Release Agreement explicitly refers to this statute, noting that Released Persons are not “responsible or liable . . . except as may [**36] otherwise be limited by New York General Obligations Law 5-326.” ECF No. 316-1.

In order for GOL § 5-326 to apply, the plain text of the statute indicates that the agreement in question must (1) be made between a user and an owner or operator of a “place of amusement or recreation” or “similar establishment,” and (2) a fee or other compensation must be paid for “use” of a “facility” covered by the statute. Courts that have considered situations where equipment was rented and taken out of the control of the facility owner or operator have additionally considered whether the owner or operator exercised a substantial level of control over the environment in which the recreational activity takes place. See, e.g., Dumez v. Harbor Jet Ski, Inc., 117 Misc. 2d 249, 250, 458 N.Y.S.2d 119 (Sup. Ct. Niagara Cty. 1981).

Corwin argues that the Citi Bike program was primarily, or at the very least, substantially, a “recreational” program, and that the defendants’ business plan presupposed a significant number of daily and recreational users. He cites to a state court proceeding in which a neighborhood association challenged the installation of a Citi Bike station in a public park on the grounds that it was purely a commuter program. There, the City argued and the court held that the program fulfilled a valid recreational purpose. Friends of Petrosino Square v. Sadik-Khan, 42 Misc. 3d 226, 977 N.Y.S.2d 580 (Sup. Ct. N.Y. Cty. 2013), aff’d, 126 A.D.3d 470, 5 N.Y.S.3d 397 (1st Dep’t 2015). Therefore, [**37] according to Corwin, because the Citi Bike rental station where the accident occurred was a “place of recreation,” and he paid a fee to access the facility in the form of his annual membership, GOL § 5-326 operates to invalidate the exculpatory clause in the contract.5

5 Corwin also argues that the express language in the Release Agreement referencing GOL § 5-326 operates as an admission that negligence claims stemming from Citi Bike are not waivable and “is compelling proof of defendants’ recognition that [the] waiver is void.” ECF No. 361, Pl.’s Reply Mem. at 8. This is incorrect. Rather, the reference to GOL § 5-326 is plainly to ensure that the waiver provisions are not overbroad, putting users on notice that any such claims, were they to exist, would not be waived. It is not an admission that such claims actually could exist, or that in this case they do exist.

While the parties may dispute whether Corwin’s fateful Citi Bike ride was “recreational” in character, it is clear that the applicability of GOL § 5-326 cannot possibly turn on whether the given individual was using the bicycle recreationally or for commuting purposes. Defendants, moreover, argue that the statute does not apply because the membership fee does not entitle the user access or use of any physical facility; the fee is solely for the rental of a bike, while any individual is free to traverse the Citi Bike stations or New York City streets.

Several New York courts have held that GOL § 5-326 does not apply to accidents occurring on publicly accessible roadways, trails, or fields. See Deutsch v. Woodridge Segway, LLC, 117 A.D.3d 776, 777, 985 N.Y.S.2d 716 (2d Dep’t 2014) (statute not applied to plaintiff who rented a Segway vehicle and was taken on defendant-guided tour of muddy public trail “because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission [**38] fee for the use of the public trail over which the tour was conducted”); [*494] Brookner v. N.Y. Roadrunners Club, Inc., 51 A.D.3d 841, 842, 858 N.Y.S.2d 348 (2d Dep’t 2008) (statute not applied to marathon runner because entry fee “was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run” and “public roadway in Brooklyn where the plaintiff alleges he was injured is not a ‘place of amusement or recreation'”); Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d 758, 758, 673 N.Y.S.2d 181 (2d Dep’t 1998) (statute not applied to cyclist on paid bike tour “since the Verrazano Narrows Bridge, where the plaintiff . . . was injured, is not a ‘place of amusement or recreation'”); Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 634, 636 N.Y.S.2d 853 (2d Dep’t 1996) (statute not applied to accident occurring in softball game where no fee was paid to access field).

On the other hand, other courts have applied GOL § 5-326 to certain accidents on publicly accessible roadways, trails, or fields. See Williams v. City of Albany, 271 A.D.2d 855, 856-57, 706 N.Y.S.2d 240 (3d Dep’t 2000) (declining to follow Stuhlweissenburg and invalidating waiver for accident occurring in publicly accessible field for plaintiff playing in privately-operated flag football league); Filson v. Cold River Trail Rides, Inc., 242 A.D.2d 775, 777, 661 N.Y.S.2d 841 (3d Dep’t 1997) (invalidating waiver in horseback-riding accident guided by defendant but occurring on publicly accessible parkland); Wright v. Freeport Hudson Anglers, Inc., 2009 N.Y. Misc. LEXIS 4712 (Sup Ct. Nassau Cnty. Apr. 8, 2009) (invalidating waiver for sea accident occurring in fishing tournament).

In seeking to reconcile [**39] the case law, Defendants point out that every court to consider the applicability of GOL § 5-326 to an accident occurring on a public, paved, urban street has found the statute to be inapplicable. Corwin, for his part, argues that these cases are inapposite because the bike station was not part of a public road at all, but rather a separate “recreational facility” that happened to be located on a public road.6

6 If true, this, of course, would contradict Corwin’s argument that the Release Agreement is unenforceable as to the City because it purports to waive the City’s non-delegable duty to maintain its roads.

Considering the case law and the legislative intent animating the statute, the Court finds as a matter of law that a Citi Bike station is not a “facility” for the purposes of § 5-326. The stations are plainly more properly characterized as storage facilities for bicycles rather than facilities for recreation in and of themselves. Even if riders incidentally enter or pass through the stations on their bicycles, or if the design of the particular bike station that was the site of the accident encouraged riders to pass through it, this does not turn them into “places of amusement or recreation.” Assuming without deciding that Citi Bike is properly characterized as a primarily recreational program, the intended sites for that recreational use are the City’s roadways and bike lanes–the very types of [**40] paved public thoroughfares that courts have held are not “places of amusement or recreation.” See, e.g., Brookner, 51 A.D.3d at 842. Therefore, the station can only be defined in two ways: either it is part of the public road on which riders are meant to engage in recreational activity, or it is a storage facility that is not part of the roadway. Either way, it is not a “place of amusement or recreation” or “similar establishment,” as required to trigger the statute. Accordingly, GOL § 5-326 cannot serve as a basis for invalidating the Release Agreement.

iii. City’s Common Law Duty to Maintain the Roads

New York courts have long held “that a municipality owe[s] to the public the absolute [*495] duty of keeping its streets in a reasonably safe condition.” Friedman v. State, 67 N.Y.2d 271, 283, 493 N.E.2d 893, 502 N.Y.S.2d 669 (1986) (quotations omitted); see also Wittorf v. City of New York., 23 N.Y.3d 473, 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 (2014) (“[A] municipality has a duty to maintain its roads and highways in a reasonably safe condition and liability will flow for injuries resulting from a breach of that duty.”). As this duty has been characterized as “absolute” and “non-delegable” (though subject to the doctrine of qualified immunity, see infra Part IV), Corwin argues that the City’s duty applies to the bike station and wheel stop at issue and cannot be released by means of a private contract. The City [**41] contends that while it does indeed have a duty to maintain public roadways, a contractual waiver of this duty is permissible and would not offend any overarching public policy.

Before considering whether the City’s duty to maintain public roadways may be released by contract to a voluntary participant in a public transportation program such as Citi Bike, the Court must first determine whether the Citi Bike station where Corwin’s accident occurred properly falls within the scope of that duty. Indeed, defendants argue repeatedly that cyclists are not intended to use bike station areas as a travel lane, and that those facilities are intended only for the storage, retrieval, and return of bicycles. They contend that the presence of the concrete wheel stops and surrounding cross-hatching, white thermoplastic striping, and flexible delineators plainly distinguished the bike station from the adjoining roadway, and should have indicated to a cyclist that it was an area in which cycling was not permitted.

In determining the scope of a municipality’s duty, New York courts have generally considered whether the municipality affirmatively undertook to provide an improved area adjacent to the road, [**42] such as a shoulder. If so, it has generally been held to be responsible for its maintenance. See Bottalico v. State, 59 N.Y.2d 302, 305, 451 N.E.2d 454, 464 N.Y.S.2d 707 (1983) (finding highway shoulder to be within scope of duty because it was “both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon”). The touchstone of this analysis is foreseeability. It does not necessarily depend on the reasonableness of a plaintiff’s conduct. A municipality is required to “maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver’s negligence.” Id. at 304; see also Stiuso v. City of New York, 87 N.Y.2d 889, 891, 663 N.E.2d 321, 639 N.Y.S.2d 1009 (1995) (same); Saulpaugh v. State, 132 A.D.2d 781, 781-82, 517 N.Y.S.2d 328 (4th Dep’t 1987) (same).

On the other hand, no duty exists where a paved roadway “is more than adequate for safe public passage and travel beyond those limits is neither contemplated nor foreseeable.” Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 385 N.E.2d 581, 412 N.Y.S.2d 842 (1978) (noting that “utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way . . . [b]ut for the careful driver, the placement of these items near the pavement creates no unreasonable danger”). The courts have repeatedly denied recovery for roadway users whose injury stemmed from the lack of maintenance of areas near the roadway whose use was unforeseeable even in emergencies. [**43] See, e.g., Preston v. State, 6 A.D.3d 835, 836, 775 N.Y.S.2d 115 (3d Dep’t 2004) (no recovery for driver hitting tree seven feet from the edge of the travel line, where “nothing in the record indicat[ed] [*496] that defendant affirmatively took any action to create or maintain the area”); Green v. Cty. of Allegany, 300 A.D.2d 1077, 1077, 752 N.Y.S.2d 487 (4th Dep’t 2002) (no recovery for failure to maintain drainage ditch and culvert headwall); Muller v. State, 240 A.D.2d 881, 882, 658 N.Y.S.2d 727 (3d Dep’t 1997) (no recovery for failure to maintain drainage ditch headwall beyond the traversable shoulder where the “emergency use of such additional area was neither contemplated nor foreseeable”).

The record does not demonstrate that the City actively contemplated that cyclists would be passing through Citi Bike stations; indeed, precisely the alleged failure to contemplate this possibility forms the basis for Corwin’s argument that the City is not entitled to qualified immunity on this issue. The Court does find, however, that the possibility of cyclists passing through Citi Bike stations located in on-street parking lanes was foreseeable. At times, defendants’ representatives have seemed to admit that riding in the parking lane was, if not expressly permitted, at least a common practice of cyclists. ECF No. 335-24, Jon Orcutt 09/03/15 Depo. at 396-97. (“There are plenty of places with a wide parking lane . . . where [**44] a wide parking lane is kind of implemented as a stealth bike lane.”) This conclusion is buttressed by a brief traffic study conducted by Corwin’s expert, James M. Green. ECF No. 335, Green Decl. ¶¶ 35, 57 (finding that cyclists regularly circulated through the station at issue and arguing that this was a “foreseeable consequence of this Station design,” which was wider and jutted further out into the traffic lane). But even absent the expert’s study, logic dictates that, just as an automobile is not generally permitted to drive on an improved shoulder but may swerve into it (negligently or not) in a situation where the circumstances so require, it is foreseeable that a cyclist such as Corwin may (negligently or not) enter into the Citi Bike station seeking safety when feeling pressured by tight traffic.

This is, perhaps, an imperfect analogy: whereas the express and primary purpose of an improved highway shoulder is to provide a safe outlet for motorists in emergency situations, this is not so for Citi Bike stations, whose primary purpose is the storage, retrieval, and return of bicycles. Nevertheless, the applicable case law does not require that the primary purpose of the improved [**45] space abutting the road be for such emergency uses; as stated above, foreseeability is sufficient to trigger the municipality’s duty. Nor have courts drawn distinctions between motorists and other roadway users; instead, they have found that cyclists may bring claims predicated on state or municipal government’s failure to maintain roadways. See, e.g., Cotty v. Town of Southampton, 64 A.D.3d 251, 255, 880 N.Y.S.2d 656 (2d Dep’t 2009) (primary assumption of risk doctrine “not designed to relieve a municipality of its duty to maintain its roadways in a safe condition . . . and such a result does not become justifiable merely because the roadway happens to be in use by a person operating a bicycle”); Caraballo v. City of Yonkers, 54 A.D.3d 796, 796-97, 865 N.Y.S.2d 229 (2d Dep’t 2008) (“[T[he infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity of recreational noncompetitive bicycling, and using the bicycle as a means of transportation.” (citations omitted)).

Finally, there can be no question that the duty to maintain the roads applies not only to the physical condition of the road itself, but also to the placement of [*497] obstacles or hazards that make use of the road unsafe. Annino v. City of Utica, 276 N.Y. 192, 196-97, 11 N.E.2d 726 (1937) (municipality found liable [**46] for a tripod dangerously placed over a manhole cover so as to constitute a dangerous obstruction); Whitney v. Town of Ticonderoga, 127 N.Y. 40, 44, 27 N.E. 403 (1891) (“[T]he impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway.”).

Accordingly, the Court finds that the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads. Therefore, the Court must now decide whether the City can waive this duty by contract as a condition of participating in the Citi Bike public transportation program.

“[E]ven an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced by the courts . . . if it is found to violate public policy either by way of conflicting with an overriding public interest or because it constitutes an abuse of a special relationship between the parties, or both.” Ash, 164 A.D.2d at 369. Indeed, when choosing to invalidate such clauses, courts have often analyzed the “public interest” and “special relationship” prongs together. See id. at 369-71 (invalidating exculpatory clause between dental clinic and patient both [**47] because of the public interest in protecting the welfare of its citizens and ensuring medical quality and the uniqueness of the physician-patient relationship); Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 247-48, 194 N.E. 692 (1935) (invalidating clause between common carrier and passenger because allowing public service corporations to disclaim all liability for negligence by contract is contrary to public interest, and passengers are not typically given a choice in contracting); Johnston v. Fargo, 184 N.Y. 379, 384-85, 77 N.E. 388 (1906) (invalidating exculpatory clause between employer and employees both because of the state interest in the “maintenance of proper and reasonable safeguards to human life and limb” and the unequal bargaining power between the parties). On the other hand, courts have readily enforced exculpatory clauses in arm’s length commercial transactions between two private parties, see, e.g., Florence v. Merchants Cent. Alarm Co., Inc., 51 N.Y.2d 793, 412 N.E.2d 1317, 433 N.Y.S.2d 91 (1980), when not expressly prohibited by statute.

No case has considered the specific question of whether a municipality’s duty to keep its streets in a reasonably safe condition for travel can be waived by contract. For almost two centuries, however, New York state courts have spoken of an “absolute” duty that could not be delegated to third parties. See Annino, 276 N.Y. at 196 (1937) (“The city owed to the public the absolute duty of [**48] keeping its streets in a reasonably safe condition for travel and was bound to exercise reasonable care to accomplish that end.”) (emphasis added) (citations omitted); Storrs v. City of Utica, 17 N.Y. 104, 108-09 (1858) (finding that municipal corporations “owe[] to the public the duty of keeping its streets in a safe condition for travel” and “although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried on . . . [and cannot] either avoid indictment in behalf of the public or its liability to individuals who are injured.”). The only significant exception to this nondelegable duty is that “it is intended to protect the traveling public”–therefore, [*498] the duty has been held not to extend to injured employees of independent contractors working on road construction projects. Lopes v. Rostad, 45 N.Y.2d 617, 624-25, 384 N.E.2d 673, 412 N.Y.S.2d 127 (1978). In reaching this conclusion, the Lopes court stated that, because the government is responsible for providing the public with roads and highways for travel:

[w]ith this responsibility comes the further obligation to assure, insofar as is reasonably possible, that the thoroughfares of travel will be constructed and maintained in a safe condition. A governmental body would hardly [**49] have fulfilled its responsibility if the roadways it provided for public use were a source of public danger. It is for this reason that “[g]overnments have ever been most zealous to afford special protection to the users of streets, highways and other means of transportation” (1936 Report of NY, Law Rev Comm, p 955).

Id. at 625.

Corwin, a cyclist passing through a bike station located in a parking lane on a public street, falls within the category of those deemed protected by a municipality’s duty to maintain its roadways. While it is certainly understandable that the City would seek to limit its exposure to liability stemming from those using the Citi Bike program, its desire to see this salutary transportation initiative succeed is not sufficiently related to the key, centuries-old public policy of guaranteeing the safety of the users of City streets. It is this public policy that underlies its non-delegable duty to keep streets and roadways safe. The City has designed a public transportation system that involves physical installations in parking lanes on heavily transited streets, and permitted a contractor, NYCBS, to implement and manage that program. Even though the purported liability waiver is confined [**50] to road conditions in the circumscribed area of the bike stations, the Court finds that the enforcement of such a waiver against over a million Citi Bike users is contrary to the public policy that dictates that the City has the duty to guarantee road safety.7

7 The waiver would certainly be effective as to claims unrelated to road conditions, such as, for example, the quality of the bicycles or the malfunctioning of the rental kiosks.

After all, the fact that Corwin was riding a Citi Bike, as opposed to his own bicycle, at the time of his accident was purely coincidental. The City does not articulate any public policy in barring Corwin’s claim but permitting a claim brought by a non-member of Citi Bike who strikes the same wheel stop while riding his own bicycle. There is no basis for immunizing the City from suit by one class of cyclists–who participate in a highly publicized transportation program such as Citi Bike–while allowing non-Citi Bike users to bring suit for the same accident occurring in the same area of the street. Simply put, the law clearly imposes upon the City a duty to ensure road safety for all pedestrians, cyclists, motorists, and road users on all sections of the road that are foreseeably transitable.

At oral argument, counsel for the City indicated that the execution of transportation programs such as Citi Bike would not be feasible without [**51] such waivers of liability. But the City is not left wholly unprotected. As discussed in Parts IV and V of this opinion, the finder of fact may determine that the City is entitled to qualified immunity in regards to the station design, or that the City was not “affirmatively negligent” and is thus protected by the notice provisions of New York Administrative Code § 7-201. Therefore, the Court does not believe that its invalidation of the [*499] waiver as to road conditions and hazards within the bike stations threatens the viability of the Citi Bike program.

D. Conclusion

For the foregoing reasons, the Release Agreement effectively releases Corwin’s common-law negligence claims against NYCBS, allowing only claims of gross negligence to proceed against it. The waiver does not apply to the City, however, because such a release of the City’s duty would be contrary to public policy; accordingly, Corwin may proceed with his common-law negligence claims against the City. The Court need not decide if the APD is a “Released Person” under the Agreement, as it grants summary judgment to APD on all claims in Part VIII of this opinion on other grounds.

III. Affirmative Defenses Based on Corwin’s Failure to Wear [**52] a Helmet

Defendants have set out various affirmative defenses–including comparative negligence, primary assumption of the risk, and failure to mitigate damages–premised on the uncontested fact that Corwin was not wearing a bicycle helmet at the time of the crash. Corwin moves for partial summary judgment on all of these defenses, arguing that there was no statutory obligation that he do so, that the City and NYCBS themselves represented that wearing a helmet was unnecessary, and that New York Vehicle and Traffic Law (“VTL”) § 1238(7) and case law in New York and other jurisdictions expressly prohibits such conduct from being considered for the purposes of liability or damages.

As a preliminary matter, Corwin argues that defendants have failed to produce sufficient evidence to raise a factual question as to whether there was an unreasonable risk of a head injury while riding a Citi Bike without a helmet. Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party . . . .” Chambers, 43 F.3d at 37. There are disputed questions of material fact in this case as to both (a) whether a reasonably prudent person in Corwin’s [**53] circumstances would have worn a helmet and (b) whether wearing such a helmet would have mitigated the damages Corwin suffered. See, e.g., ECF No. 344, Decl. of Elizabeth McCalley (arguing that Corwin would not have sustained many of his severe injuries had he worn a helmet).

There is no dispute that Corwin was not obligated to wear a helmet while riding a Citi Bike or any other bicycle; unlike the seatbelt requirements of N.Y. VTL § 1229-c, there is no statutory obligation for an adult bicyclist to wear a helmet while riding a bike on a public road. N.Y. VTL § 1238(5) does require children under the age of fourteen to do so, but imposes no affirmative obligations on individuals over that age. A subsection of the same statute also indicates that “the failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not in any way bar, preclude or foreclose an action for personal injury or wrongful death by or on behalf of such person, nor in any way diminish or reduce the damages recoverable in any such action.” VTL § 1238(7); see also Lamica v. Precore, 273 A.D.2d 647, 647-48, 709 N.Y.S.2d 694 (3d Dep’t 2000) (in accident involving helmetless child on bicycle, dismissing defendants’ counterclaim that parents were negligent [**54] for failing to ensure child wore helmet). Therefore, Corwin argues, if New York has seen fit to preclude expressly the consideration of helmet evidence for either liability or damages purposes even when wearing a helmet is mandated [*500] by law, surely the failure to wear a helmet by someone not obligated to do so by law should be similarly inadmissible.

The fact that New York has categorically barred the consideration of such evidence in a statute aimed at the protection of children does not, however, imply that the state has a general public policy against the admission of such evidence for all bicycle riders. Indeed, though Corwin argues that it would be “anomalous and irrational” to admit helmet evidence for an older rider under no legal obligation to wear a helmet, there is a clear and obvious rationale for the limited reach of the statute: a desire to prevent families from being burdened with costs stemming from accidents occurring on account of their young children’s inability to perceive risks, and a determination that parents should not be found negligent for failing to ensure that their children wear helmets. No court has interpreted VTL § 1238(7) to stand for a general public policy that the [**55] failure to wear a helmet is inadmissible for purposes of measuring comparative negligence or mitigation of damages, and the Court declines to do so today.

While the New York Court of Appeals has not spoken authoritatively on the specific question of whether the non-use of a bicycle helmet is admissible under such circumstances, the framework that it adopted regarding the non-use of seat belts in automobiles is instructive. At a time when no law mandated that occupants of a passenger car wore seat belts, the court explicitly rejected the failure to wear a seat belt as a basis for contributory negligence8 or primary assumption of the risk, but concluded that:

nonuse of an available seat belt . . . is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. However . . . the plaintiff’s nonuse of an available seat belt should be strictly limited to the jury’s determination of the plaintiff’s damages and should not be considered by the triers of fact in resolving the issue of liability. [**56]

Spier v. Barker, 35 N.Y.2d 444, 449-50, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974).

8 Though the Spier decision was rendered before New York’s adoption of the comparative fault system and therefore discussed only if a plaintiff would be wholly barred from recovery under the then-existing doctrine of contributory negligence, New York courts have consistently considered seat belt evidence exclusively for purposes of mitigation of damages, and not for the apportionment of comparative fault. See, e.g., Stein v. Penatello, 185 A.D.2d 976, 976-77, 587 N.Y.S.2d 37 (2d Dep’t 1992).

Therefore, in cases involving the failure to wear a seat belt, New York law imposes a pre-accident obligation to mitigate damages, and the burden of proving that the injured party failed to do so rests upon the defendant. Davis v. Davis, 49 A.D.2d 1024, 1024, 374 N.Y.S.2d 482 (4th Dep’t 1975). Lower New York courts have applied the same principles to other types of protective gear as well. See, e.g., Penzell v. State, 120 Misc. 2d 600, 466 N.Y.S.2d 562, 567 (Ct. Cl. 1983) (motorcycle helmets); Giannetti v. Darling Del. Carting Co., 175 Misc. 2d 1, 666 N.Y.S.2d 372, 374-76 (Sup. Ct. Suffolk Cnty. 1997) (safety gloves in fast food restaurant). And, indeed, in the state court proceedings parallel to this case, the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how [*501] damages, if any, should be assessed.” Corwin v. City of New York, 141 A.D.3d 484, 490, 36 N.Y.S.3d 118 (1st Dep’t 2016) (citation omitted).9

9 State courts in other jurisdictions have also drawn analogies between seat belt and helmet use. See, e.g., Stehlik v. Rhoads, 2002 WI 73, 253 Wis. 2d 477, 645 N.W.2d 889 (Wis. 2002) (same principles govern seat belt and helmet defenses for ATV rider); Meyer v. City of Des Moines, 475 N.W.2d 181, 186 (Iowa 1991) (same for moped rider); Warfel v. Cheney, 157 Ariz. 424, 758 P.2d 1326 (Ariz. App. 1988) (same for motorcyclist).

To be sure, some courts across the country have reached contrary conclusions.10 See, e.g., Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 647-48 (D.N.J. 1997) (noting that nothing in federal or state law alerts adult cyclists that their rights may be prejudiced by failure to wear a helmet, finding fewer safety concerns with helmetless biking and rejecting analogy to seat belt laws); Walden v. State, 250 Mont. 132, 818 P.2d 1190, 1196-97 (Mont. 1991) (holding same in state where evidence [**57] of seat belt use is inadmissible for mitigation of damages purposes). The decision in Corwin, however, and the logic of Spier and the New York cases extending it beyond the seat belt domain, compel denial of Corwin’s motion for summary judgment as it pertains to the affirmative defenses relating to mitigation of damages.

10 Corwin relies on Phelan v. State of New York, 11 Misc. 3d 151, 804 N.Y.S.2d 886 (N.Y. Ct. Cl. 2005), where the New York Court of Claims declined to consider a bicyclist’s non-use of a helmet in mitigation of damages. The case, however, is distinguishable as “no persuasive testimony, medical or otherwise, was proffered to establish that [plaintiff’s] injuries would have been either avoided or reduced had she worn a helmet.” Id. at 167. Therefore, the defendant failed to make even a prima facie case that damages should be mitigated by the decedent’s failure to wear a helmet. To the extent that Phelan also based the decision on the fact the “[d]ecedent was not required to wear a helmet [by law],” this is inconsistent with the Appellate Division’s decision in Corwin, 141 A.D.3d 484, 36 N.Y.S.3d 118, and the logic of Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916.

Nevertheless, even as Spier and its progeny indicate that Corwin’s non-use of a helmet will be admissible for the purposes of calculating damages, the cases also hold that such evidence is inadmissible on questions of liability. Therefore, defendants shall not be permitted to argue that Corwin was comparatively negligent for failing to wear a helmet.11 For the same reason and for the reasons expressed in Part VI of this Opinion, defendants will also not be permitted to argue that Corwin’s claims are barred by the doctrine of primary assumption of risk. See also Cotty, 64 A.D.3d at 256 (2d Dep’t 2009) (“[R]iding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine.”).

11 Of course, defendants may still argue at trial that Corwin was comparatively negligent for other reasons, including, inter alia, the speed, manner, and location of where he was riding his bicycle.

Accordingly, Corwin’s motion for summary judgment is DENIED as to the City’s Seventh and Ninth affirmative defenses (ECF. No. 200), NYCBS’s Sixth affirmative [**58] defense (ECF No. 199), and Metro Express’s Sixth affirmative defense (ECF No. 213) concerning the relevance of his non-use of a helmet to mitigation of damages, and GRANTED as the City’s Second and Eighth affirmative defenses, NYCBS’s First and Seventh affirmative defenses and Metro Express’s Second and Seventh affirmative defenses, inasmuch as those defenses assert the relevance of his non-use of a helmet to comparative negligence and assumption of the risk. Sealcoat [*502] did not explicitly reference Corwin’s failure to use a helmet as an affirmative defense, (ECF No. 211) and in Part VIII, the Court grants summary judgment to APD and APDNY, thus rendering the question of summary judgment on their First affirmative defense moot.

IV. Qualified Immunity

A. City’s Qualified Immunity for Bike Station Design and Wheel Stop Placement

The City of New York moves for summary judgment on the grounds that its involvement in the design and planning of the Citi Bike program is a uniquely governmental function for which it is entitled to qualified immunity as a matter of law. See Valdez v. City of New York, 18 N.Y.3d 69, 76, 960 N.E.2d 356, 936 N.Y.S.2d 587 (2011) (“Even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental [**59] function can avoid liability if it . . . proves that the alleged negligent act or omission involved the exercise of discretionary authority.”).

“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.” Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 995 N.E.2d 131, 972 N.Y.S.2d 169 (2013). A municipality engages in governmental functions when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers,” and in proprietary functions when “its activities essentially substitute for or supplement traditionally private enterprises.” Id. (citations omitted). If a municipality acts in a governmental capacity, the plaintiff must prove that he was owed a special duty, and that the exercise of governmental authority was not discretionary. Turturro v. City of New York, 28 N.Y.3d 469, 478-79, 45 N.Y.S.3d 874, 68 N.E.3d 693 (2016).

Traffic planning decisions, including decisions about the design of roads and other facilities, are proprietary functions, arising from a municipality’s “proprietary duty to keep its roads and highways in a reasonably safe condition.” Wittorf, 23 N.Y.3d at 480. This duty, while “nondelegable . . . is measured by the courts with consideration given [**60] to the proper limits on intrusion into the municipality’s planning and decision-making functions.” Friedman, 67 N.Y.2d at 283 (internal quotation marks and citations omitted). As such, “in the specific proprietary field of roadway safety, a municipality is afforded ‘a qualified immunity from liability arising out of a highway planning decision'” under certain circumstances. Turturro, 28 N.Y.3d at 479-80 (quoting Friedman, 67 N.Y.2d at 283)).

Such immunity arises only when the defendant can “demonstrate that a public planning body considered and passed upon the same question of risk as would go to a jury in the case at issue.” Jackson v. N.Y. City Transit Auth., 30 A.D.3d 289, 290-91, 818 N.Y.S.2d 32 (1st Dep’t 2006) (finding general evaluation of buses referencing passengers’ ability to grab onto overhead racks insufficient to grant qualified immunity on claim that transit authority should have installed grab bars and handholds); Leon v. N.Y. City Transit Auth., 96 A.D.3d 554, 554-55, 947 N.Y.S.2d 33 (1st Dep’t 2012) (denying qualified immunity for passenger injured by falling in gap between train car and platform when City had only studied the risk that train would scrape platform); see [*503] also Turturro, 28 N.Y.3d at 483 (no qualified immunity for City’s failure to study speeding traffic on avenue); Poveromo v. Town of Cortlandt, 127 A.D.3d 835, 837, 6 N.Y.S.3d 617 (2d Dep’t 2015) (no qualified immunity for municipality’s failure to install certain traffic devices at an intersection absent a study); Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637 (2d Dep’t 2011) (no qualified immunity for design of traffic [**61] intersection in absence of any pedestrian traffic studies); cf. Levi v. Kratovac, 35 A.D.3d 548, 549, 827 N.Y.S.2d 196 (2d Dep’t 2006) (qualified immunity granted for design of traffic intersection pursuant to a pedestrian safety study and reasonable traffic plan).

In light of these principles, the key question is whether the City’s planning of the Citi Bike program “passed upon the same question of risk” that this case presents–namely, that the placement of unpainted concrete wheel stops within Citi Bike stations could pose a tripping danger to cyclists. The City describes a collaborative process between it and APD based on its experiences with “bike corrals” that employed similar features, including wheel stops. ECF No. 293, City St. ¶¶ 40-42, 50. The City indicates that it viewed wheel stops as “the most important safety feature that was also installed in 2011.” Id. ¶ 46. Accordingly, the result of its collaboration with APD was a set of guidelines including the use of “non-permanent bollards, wheel stops, and paint markings.” Id. ¶ 55; ECF No. 289-19, 04/23/12 Station Siting Guidelines at 11. The City notes that APD and APDNY considered a wheel stop to be a necessary feature to protect the bike station from vehicles encroaching on the station and [**62] damaging the equipment or injuring individuals who may be within the station. City St. ¶ 58; ECF No. 289-3, Adrian Witte 08/14/15 Depo. at 20-21; ECF No. 289-5, Jeff Olson 09/29/15 Depo. at 410-11. The City did not, however, approve of the use of wheel stops that extend outside of the parking lane and into the travel lane. City St. ¶ 66; ECF No. 291, Sameer Barkho Decl. ¶ 10. The City determined that a yellow and black object marker, which had been included in the original design of some bike corrals, was “optional” because the on-street bike parking station sat in a parking lane and not a travel lane, and “pavement markings were more than sufficient to signal to an approaching motorist or bicyclist the presence of the on-street bike parking station and the presence of the wheel stop in the parking lane.” Id. ¶ 11. On the contrary, wheel stops would be situated within a white painted rectangular box with “white paint markings forming diagonal lines within the rectangular box.” Id. at ¶ 12.

The record plainly indicates that the decision to install concrete wheel stops in Citi Bike stations was the product of careful consideration and deliberation between the City and APD’s design and [**63] engineering experts. This mere fact, however, does not suffice for the City to be entitled to qualified immunity as a matter of law. Corwin does not merely seek to have the fact finder “examine the criteria that were considered by the State’s professional staff, emphasize factors allegedly overlooked, and, with the benefit of hindsight, rule that the studies were inadequate as a matter of law.” Friedman, 67 N.Y.2d at 285-86. Rather, he argues that though the City considered the need and efficacy of wheel stop placement to prevent cars from encroaching into the stations and harming individuals or property, it conducted no studies whatsoever as to whether such wheel stops could constitute tripping hazards for cyclists passing through such stations.

[*504] Though it is a close question, because the City has obviously given the coloring, placement, and demarcation of wheel stops some thought, the Court finds that there is a genuine dispute of material fact as to whether the City studied or “passed upon the same question of risk” presented in this case. While there is extensive testimony in the record that the City believed that wheel stops were of great importance in protecting stations from automobiles, the City has presented [**64] no specific study that suggests that it considered the effect of wheel stop placement or design on the safety of pedestrians or cyclists passing through the station, or whether the City considered that the wheel stops might be in the foreseeable paths of cyclists who, by custom or necessity, pass through the Citi Bike station footprints. In particular, it is not clear on what basis the City decided that object markers were to be made “optional,” or if the City considered the adequacy of shorter wheel stops that would extend no further into the parking lane than the bikes themselves. Therefore, as a reasonable fact-finder could find that the City did not study or pass on the “same question of risk,” the City is not entitled to qualified immunity as a matter of law on the specific question of wheel stop placement. At trial, the jury will be asked special interrogatories to resolve these disputed facts.

B. City’s Qualified Immunity for Failure to Provide Bicycle Helmets to Citi Bike Users

The City also moves for summary judgment on the basis of qualified immunity on Corwin’s claims that “the intentional failure and refusal of the Defendants to design Citi Bike to include a convenient system [**65] of helmet rentals–as in place in Melbourne, Vancouver and Seattle–or otherwise provide helmets at all Citi Bike sites, was negligent . . . .” ECF No. 192, Second Am. Compl. ¶ 352.

The record plainly demonstrates that the City’s decision not to mandate or provide helmets to Citi Bike users was the fruit of a well-reasoned policy based on extensive study of the “same question of risk as would go to a jury in the case at issue.” Jackson, 30 A.D.3d at 290. As early as 2009, the City’s Feasibility Study noted that “increasing the number of bicyclists is one of the most reliable ways to increase bicyclist safety,” and cast doubt on the feasibility of helmet distribution. City St. ¶ 4; ECF No. 290-1, Bike Share Feasibility Study. The director of the City’s Bike Share Unit stated that the City found that “mandatory helmet laws decreased bicycle ridership in general and decreased participation in bike share programs in particular. [The City] considered statistics showing that mandatory helmets laws actually decreased the safety of bicycling . . . [and] bicycle riders wearing helmets tend to ride more recklessly than riders who do not.” ECF No. 290, John Frost Decl. ¶ 5. The City specifically noted that in Melbourne, [**66] Australia, mandatory helmet laws resulted in a lowered rate of bicycle usage. City St. ¶ 13; ECF No. 289-2, Kate Fillin-Yeh 08/20/15 Depo. at 46-48. The City also specifically considered installing automatic helmet rental machines and rejected the proposal on hygiene and structural integrity grounds in public comments justifying the policy choice. ECF No. 290, John Frost Decl. ¶ 6; ECF No. 289-1, Stephanie Levinsky-Shaw 08/12/15 Depo. at 222. Nevertheless, the City encouraged bicycle helmet use by distributing discount voucher coupons for the purchase of helmets to annual members and expanding helmet fitting and giveaway programs. ECF No. 290, Frost Decl. ¶ 7; ECF No. 289-2, Fillin-Yeh Depo. at 56, 60.

[*505] Contrary to Corwin’s contentions, the fact that Defendants may raise the issue of his non-use of a helmet to prove a failure to mitigate damages does not affect the City’s qualified immunity on this issue. Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.” [**67] Corwin, 141 A.D.3d at 495 (Andrias, J., dissenting). He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. See Weiss v. Fote, 7 N.Y.2d 579, 588, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960) (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.

V. New York City Administrative Code § 7-201

New York City Administrative Code § 7-201(c)(2) provides that:

No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street . . . being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation . . . or where there was previous injury to person or property as a result of the . . . condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the . . . condition, and there was a failure or neglect [**68] within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.

Popularly known as the “Pothole Law,” the purpose of § 7-201(c)(2) is to prevent municipal liability for “nonfeasance” and to limit it to cases where the municipality had actual notice and opportunity to correct the hazardous condition. Katz v. City of New York, 87 N.Y.2d 241, 243, 661 N.E.2d 1374, 638 N.Y.S.2d 593 (1995). It is uncontested that the City did not have written notice of the installation of the specific wheel stop at the Madison Avenue end of the Citi Bike station where the crash occurred until after the accident, and that the drawing accompanying the permit does not show a wheel stop at that location. City St. ¶¶ 107-12. City records do not demonstrate any written complaints or claims of injury regarding a wheel stop at that location. Id. at ¶¶ 111-13.

There are, however, two exceptions to § 7-201(c)(2)–“that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” Yarborough v. City of New York, 10 N.Y.3d 726, 728, 882 N.E.2d 873, 853 N.Y.S.2d 261 (2008) (citation omitted).

Corwin does not merely allege that the City failed to remediate a dangerous condition created by a third party; indeed, his entire theory of liability [**69] is predicated on the premise that the City was affirmatively negligent in the design and placement of Citi Bike stations and wheel stops in the system as a whole. Additionally, he argues that the City was on notice of contractors’ failures to install stations as per plan specifications and yet failed to monitor them effectively, and ultimately approved an [*506] identical policy of putting wheel stops on both ends of Citi Bike stations. ECF No. 335-33, NYC Comptroller Audit; ECF No. 336-25, Station Plan w/ 2 Wheel Stops. The City, for its part, notes that neither it nor NYCBS, with whom it had a contractual relationship, actually installed the wheel stop at issue; rather, it alleges that it was installed by Sealcoat, a contractor of MetroExpress, who itself was NYCBS’s contractor. City St. ¶¶ 83-84.

The Court finds that there is a genuine dispute of material fact as to whether the City was affirmatively negligent so as to lose the written notice protections of § 7-201(c)(2). While Corwin cannot produce “smoking gun” evidence that the City affirmatively directed NYCBS or its agents to install the specific wheel stop in question, Corwin does provide evidence indicating that similar wheel stops were installed [**70] elsewhere in the City and that modifications to station plan installations were often done informally. See ECF No. 368-6 (10/30/2013 email from Dani Simons, NYCBS, to Stephanie Levitsky, DOT, stating “I do not know why [the wheel stop is] not in the drawings. I do know that [NYCBS directors] Hasib [Ikramullah] and Michael [Pellegrino] have both told me that we’ve started putting them on the cross-walk side of stations in high traffic areas . . . .”); ECF No. 336-19 (07/01/2013 email from Stephanie Levinsky to Jon Orcutt referencing “numerous on the fly modification[s]”); ECF No. 368-8 (May 15, 2013 email from DOT to NYCBS referencing “supplemental street treatments” not on the initial plan diagrams).

This evidence could lead a reasonable finder of fact to conclude that either the specific wheel stop in question, or all wheel stops that enter into the foreseeable pathway of a cyclist, were installed pursuant to affirmative acts of negligence by the City. The fact that the City had no direct contractual relationship or knowledge of the involvement of Metro Express or Sealcoat is not dispositive. Just as the City cannot delegate its duty to maintain the roads to a contractor, it cannot do so to a subcontractor [**71] of that contractor.

Accordingly, the question of whether the affirmative negligence exception to the written notice protections of § 7-201(c)(2) applies is a disputed question of fact to be resolved at trial, and the City is not entitled to summary judgment because it was not provided notice of the allegedly defective condition.12

12 Because the Court finds that the “affirmative negligence” exception may apply and because neither party has adequately briefed the “special use resulting in a special benefit” exception to § 7-201(c)(2), the Court declines to address the “special use” exception in this opinion.

VI. Primary Assumption of the Risk

The City, NYCBS, and APD also move for summary judgment on the grounds that the doctrine of primary assumption of the risk bars Corwin’s negligence claims. In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.” Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986). In this case, the Release Agreement signed by Corwin contained explicit provisions on assumption of the risk, which state, inter alia, that “Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or [*507] avoided. Member agrees that such risks, dangers, [**72] and hazards are Member’s sole responsibility.” ECF No. 316-1, Release Agreement. Whether or not the broad assumption of the risk language is applicable depends on what courts consider to be the risks inherent in bicycling, recreational or otherwise, on a paved road in an urban environment.

The New York Court of Appeals has cautioned that the doctrine of assumption of risk is justifiable exclusively for its utility in “‘facilitat[ing] free and vigorous participation in athletic activities'” and warned that the doctrine must be “closely circumscribed” and not “applied outside this limited context” lest it unduly displace the state’s comparative negligence regime. Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127 (2010) (citing Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989)).13 Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred.” Cotty, 64 A.D.3d at 255. Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational [**73] or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.” Id.; see also Moore v. City of New York, 29 A.D.3d 751, 752, 816 N.Y.S.2d 131 (2d Dep’t 2006) (plaintiff did not assume risk of recreational cycling on paved park road); Vestal v. Cty. of Suffolk, 7 A.D.3d 613, 614-15, 776 N.Y.S.2d 491 (2d Dep’t 2004) (“[T]he injured plaintiff cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because she participated in the activity of bicycling,” even where County argued that the pathway was “abandoned”).

13 In its reply memorandum of law, NYCBS appears to characterize Trupia as permitting an open-ended “social benefit” analysis to determine whether the assumption of risk doctrine applies and discusses the numerous beneficial aspects of the Citi Bike program as a public transit system. Trupia, however, was limited to discussing the social benefit to certain risky athletic activities and explicitly warns against applying the doctrine in any other context. 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127.

To be sure, courts have held that the doctrine of assumption of the risk applied in other contexts involving recreational cyclists. See, e.g., DeJesus v. City of New York, 29 A.D.3d 401, 402, 815 N.Y.S.2d 502 (1st Dep’t 2006) (plaintiff assumed risk for riding on pedestrian-only pathway in housing development); Chrem v. City of New York, 293 A.D.2d 301, 302, 741 N.Y.S.2d 201 (1st Dep’t 2002) (plaintiff assumed risk of steep drop-off in the back of a dirt mound not designated for cycling); Furgang v. Club Med, Inc., 299 A.D.2d 162, 162, 753 N.Y.S.2d 359 (1st Dep’t 2002) (“[T]he risk of encountering ruts and bumps while riding a bike over a rough roadway without a helmet is so obvious [that] as a matter of law, plaintiff assumed any risk inherent in the activity . . . .”); Goldberg v. Town of Hempstead, 289 A.D.2d 198, 198, 733 N.Y.S.2d 691 (2d Dep’t 2001) (“Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces, [**74] and the defective condition in this case was open and obvious, the infant plaintiff assumed [*508] the risk associated with riding her bicycle on the ballfield.”) (citations omitted); Calise v. City of New York, 239 A.D.2d 378, 379, 657 N.Y.S.2d 430 (2d Dep’t 1997) (plaintiff assumed the risk of hitting an exposed tree root on unpaved path in public park). These cases, however, are readily distinguishable because they all involved individuals riding a bicycle on an unpaved path or other area plainly not designated for cycling. While defendants contend that the Citi Bike station was such an “undesignated” area, the station was obviously integrated into the public roadway, and Corwin has at the very least raised a genuine dispute of material fact as to whether the design of this station compelled or encouraged him to ride through it to avoid riding dangerously close to traffic. Therefore, his brief passage through the parking lane and bike station cannot be analogized to a considered decision to engage in recreational mountain biking or to ride down an undesignated pedestrian walkway.

Accordingly, the doctrine of primary assumption of the risk is unavailable, and defendants are not entitled to summary judgment on this theory.

VII. “Open and Obvious”

A defendant has “no duty [**75] to protect or warn against an open and obvious condition which is not inherently dangerous.” Stern v. River Manor Care Ctr., Inc., 106 A.D.3d 990, 990, 965 N.Y.S.2d 377 (2d Dep’t 2013). Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Russo v. Home Goods, Inc., 119 A.D.3d 924, 925-26, 990 N.Y.S.2d 95 (2d Dep’t 2014). Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion . . . .” Tagle v. Jakob, 97 N.Y.2d 165, 169, 763 N.E.2d 107, 737 N.Y.S.2d 331 (2001). Defendants contend that Corwin’s claims fail as a matter of law because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.”

Defendants’ claims are buttressed by cases holding that wheel stops located in parking lots or similar environments were sufficiently “open and obvious” so as to bar claims by injured pedestrians. See, e.g., May v. Ruby Tuesday, Inc., No. 13-CV-170 (FJS)(ATB), 2014 U.S. Dist. LEXIS 140090, 2014 WL 4966544, at *5-6 (N.D.N.Y. Oct. 2, 2014) (parking lot wheel stop open and obvious especially given plaintiff’s admission that she had previously seen it); Abraido v. 2001 Marcus Ave, LLC, 126 A.D.3d 571, 571-72, 4 N.Y.S.3d 43 (1st Dep’t 2015) (wheel stop in well-lit parking lot open and obvious); Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 (2d Dep’t 2013) (parking lot wheel stop open and obvious when plaintiff admitted she was attempting to step over it); Wachspress v. Cent. Parking Sys. of New York, Inc., 111 A.D.3d 499, 499-500, 974 N.Y.S.2d 439 (1st Dep’t 2013) (parking [**76] lot wheel stop open and obvious); Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 593-94, 785 N.Y.S.2d 108 (2d Dep’t 2004) (same).

Whether or not a potential hazard is readily visible to the naked eye is evidently an important consideration in determining whether it is open and obvious, but it does not definitively resolve the question because “[t]he nature or location of some hazards, while they are technically visible, make them likely to be overlooked.” Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 (1st Dep’t 2004). On at least two occasions, New York courts, considering the broader context of plaintiffs’ encounter with wheel stops, declined [*509] to find that they were “open and obvious.” In Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 797-98, 22 N.Y.S.3d 106 (2d Dep’t 2015), the court found that a concrete wheel stop that began in a designated parking space but partially extended into and obstructed a pedestrian walkway was not “open and obvious” as a matter of law. Similarly, in O’Leary v. Saugerties Cent. Sch. Dist., 277 A.D.2d 662, 662, 716 N.Y.S.2d 424 (3d Dep’t 2000), a plaintiff who tripped over a concrete parking lot wheel stop raised a triable issue of fact by arguing that it was undetectable and camouflaged by cars parked bumper-to-bumper.

Were the Court to view the wheel stop, cross-hatching, and delineators in isolation, it would be hard-pressed to distinguish them from the conspicuous parking lot wheel stops that New York courts have found to be “open and obvious” as a matter of law. Notwithstanding [**77] Corwin’s argument that the wheel stop was “camouflaged” because it was not painted in a bright color that would contrast it with its surroundings, photographic evidence submitted by both Corwin and defendants suggests to the Court that it would have been readily visible to an observant pedestrian. Nevertheless, the types of obstacles that a pedestrian might expect to encounter in a parking lot are substantially different from those that a cyclist would expect in an on-street bike station. Therefore, the Court finds that Corwin has raised a genuine issue of material fact as to whether the wheel stop was open and obvious to an attentive person in his position–that is, a cyclist traveling within a station that arguably invited use as a bike lane.

The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” ECF No. 335, Green Decl. ¶ 56. An [**78] hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Id. ¶¶ 35, 57. Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. Id. ¶ 46. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.” Id. ¶¶ 48-49.

In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott, 550 U.S. at 378. Drawing all inferences in his favor, Corwin has distinguished the cases that feature garden-variety wheel stops in parking lots. Similar to the scenario in Rivera, 134 A.D.3d at 797, where the court did not find that a wheel stop was open and obvious as a matter of law when it partially obstructed a pedestrian walkway, there is a genuine dispute of material [**79] fact as to whether the wheel stop hazardously obstructed a path that was foreseeably and actually utilized by cyclists.

Accordingly, defendants are not entitled to summary judgment on the grounds that the wheel stop that caused Corwin’s accident was “open and obvious.”

[*510] VIII. Claims against Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC

Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC (collectively, “APD”), the architects and designers for the Citi Bike project who collaborated with the City to generate site plans for stations, move for summary judgment on Corwin’s claims of common law, gross, and professional negligence. APD notes that the key elements of the station that Corwin alleges caused his crash–primarily, the installation of the additional wheel stop at the east end of the station and the increased width of the station footprint–were installed in violation of its approved design. Corwin alleges that, even if APD did not recommend the installation of the specific wheel stop, their recommendation of unpainted concrete wheel stops throughout the Citi Bike system, and wheel stops’ placement within the [**80] foreseeable path of cyclists passing through stations were substantial factors in his accident. The Court need not resolve this dispute, however, because it finds that, regardless of the propriety of its recommendations to the City, APD did not owe a duty of care to Corwin under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002).

It is uncontested that, as an architecture firm, APD did not have any contractual obligations to install, inspect, or maintain Citi Bike stations and, therefore, could not be liable to Corwin under any theory dependent on its control of Citi Bike stations or wheel stops. See Gibbs v. Port Auth. of New York, 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 (1st Dep’t 2005) (“Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises . . . .”). It is similarly clear that APD had no direct contractual obligation to Corwin. Therefore, any duty to Corwin would necessarily flow out of APD’s contractual obligation to Alta Bicycle Share/NYCBS. “In the ordinary case, a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries.” Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 556 N.E.2d 1093, 557 N.Y.S.2d 286 (1990); see also H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 (1928) (Cardozo, J.) (noting that a contrary holding would imply that a contracting party would be forced into “the involuntary assumption [**81] of a series of new relations, inescapably hooked together”).

In Espinal, the New York Court of Appeals, synthesizing decades of case law, announced three exceptions to the general principle that contracting parties do not owe a duty of care to third persons. These exceptions are:

(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ (Moch, 247 N.Y. at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties (see Eaves Brooks, 76 N.Y.2d at 226) and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (see Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 589, 634 N.E.2d 189, 611 N.Y.S.2d 817 (1994)).

Espinal, 98 N.Y.2d at 140.

Corwin could not have relied on APD’s continuing performance under its contract with Alta Bicycle Share/NYCBS because [*511] APD had no such obligations except submitting site plans, and it had no effect on the duty of the other defendants to maintain the bike stations safely. Therefore, the only Espinal exception that arguably applies is that APD “launched a force or instrument of harm” with its allegedly negligent site plans and recommendations for wheel stop placements. This standard is met where “the promisor, while engaged affirmatively in [**82] discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk.” Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 111, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002); see also Guzman v. Wackenhut Corp., 394 F. App’x 801, 803 (2d Cir. 2010) (summary order).

On these facts, accepting the argument that providing allegedly negligent design advice and site plans is sufficient to “launch a force or instrument of harm” would lead to the very limitless expansion of tort liability that New York law seeks to prevent. Moch Co., 247 N.Y. at 165 (Cardozo, J.) (“An intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose.”). Indeed, Corwin’s argument is that APD’s negligence consists not of specific malfeasance relating to the design of the Citi Bike station where his accident occurred,14 but its general negligence in approving the type, appearance, and placement of wheel stops throughout the Citi Bike system. The logical conclusion of this argument is that by providing services to Alta Bicycle Share/NYCBS, APD would be subjecting itself to potential tort liability to literally millions of potential plaintiffs who could be involved in an accident involving wheel stops in any one of hundreds of Citi Bike stations–even as [**83] it had no responsibility for the maintenance or installation of the allegedly hazardous obstructions.15 This is not the law as summarized in Espinal.

14 Indeed, as APD argues, the Citi Bike station at issue in this case did not conform to its plan at all. See ECF No. 321-30, APD Expert Report. Corwin’s own expert would seem to agree. In a rebuttal report, James M. Green contended that “the original Engineering design [presented by APD] was proper in minimizing the clearance behind the parked bicycles and leaving out a wheel stop at the [relevant] intersection and was not followed during the construction of the bike station.” ECF No. 321-24, Green 01/06/16 Rebuttal Report at 9.

15 Corwin’s evidence that APD actually had some responsibility for the installation of Citi Bike stations, which appears to consist of a single May 22, 2013 email from APD engineer Adrian Witte referring the installation of station “bridging” (ECF No. 336-28), and deposition testimony references to the “collaborative” process between APD, NYCBS, and the City (ECF No. 335-6. Jeff Olson 08/26/15 Depo. at ¶¶ 401-02, 484, 530), is insufficient to raise a genuine dispute of material fact about APD’s lack of responsibility over Citi Bike stations.

Finally, Corwin argues that APD was an alter ego of Alta Bicycle Share/NYCBS because APD served as the parent company over Alta Bicycle Share before its sale in 2014. ECF No. 192, Second Am. Compl. ¶ 16. “It is well-settled that the party seeking to pierce the corporate veil has the burden of establishing that there is a basis to do so.” Maggio v. Becca Constr. Co., 229 A.D.2d 426, 427, 644 N.Y.S.2d 802 (2d Dep’t 1996) (citations omitted). Notwithstanding the close relationship between APD and Alta Bicycle Share/NYCBS, and their former association, Corwin has failed to establish that APD is anything but a legitimate and separate business entity engaging in planning and design. “Those seeking to pierce a corporate veil of course bear a heavy burden of showing that the corporation was dominated as to the transaction [*512] attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences. . . . An inference of abuse does not arise . . . where a corporation was formed for legal purposes or is engaged in legitimate business.” TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339-40, 703 N.E.2d 749, 680 N.Y.S.2d 891 (1998); see also Joseph Kali Corp. v. A. Goldner, Inc., 49 A.D.3d 397, 398-99, 859 N.Y.S.2d 1 (1st Dep’t 2008) (refusing to pierce corporate veil [**84] between two entities operated by same principal). On the record before it, the Court sees no conceivable equitable reason to disregard the corporate form in this case.

As the Court concludes that APD did not owe any duty to Corwin under Espinal, it need not consider APD’s alternate arguments regarding proximate causation and its defense that Corwin’s claim arose out of a deviation from its design. The Court GRANTS APD’s motion for summary judgment in its entirety.

IX. Claims against Metro Express Services, Inc. and Sealcoat USA, Inc.

Defendants Metro Express Services, Inc. and Sealcoat USA, Inc. (“Metro Express” and “Sealcoat,” respectively), third-party contractors who are alleged to have installed or sub-contracted the installation of the specific wheel stop that caused Corwin’s injuries, move for summary judgment, arguing that they did not owe Corwin a duty of care under Espinal, 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), and that the wheel stop is an open and obvious condition as a matter of law. Having already rejected the “open and obvious” argument in Part VII of this opinion, the Court considers whether Metro Express and Sealcoat had a duty to Corwin under one of the three Espinal exceptions discussed in Part VIII.

As was true [**85] for APD, there is no argument that Corwin “detrimentally relie[d] on the continued performance of the contracting party’s duties” or that Metro Express or Sealcoat “entirely displaced the other party’s duty to maintain the premises safely.” Id. at 140. Detrimental reliance becomes a consideration only when there is some form of continued contractual performance by the third-party contractor and is not relevant when the alleged negligent conduct concerns a one-time installation of station equipment (even if the contractor may have installed said equipment in many stations). And there is no evidence in the record that Metro Express or Sealcoat assumed any responsibilities, much less exclusive responsibilities, for the maintenance and safety of Citi Bike facilities.

Therefore, the only issue is whether there is a genuine dispute of material fact that Metro Express or Sealcoat “launch[ed] a force or instrument of harm.” Corwin contends that the wheel stop on the east side of the Citi Bike station was an “instrument of harm,” and a contractor negligently responsible for its installation could be found liable under Espinal. To be sure, “[a] builder or contractor is justified in relying upon the plans and specifications [**86] which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46, 145 N.E. 321 (1924). There are, however, genuine disputes of material fact as to whether the contractors installed the wheel stop in question and whether they did so pursuant to a plan provided them by NYCBS.

Citing ambiguities in emails received from NYCBS, Metro Express contends that a full installation of street treatments [*513] was never ordered for the Citi Bike station at issue, and in fact NYCBS only ordered Metro Express and Sealcoat to carry out repairs. ECF No. 366, Metro Express Reply Mem. at 3-4. Metro Express further notes that Sealcoat reported that there was nothing wrong with the station and never invoiced or received payment for any work. Id. at 5. Finally, it contends that Metro Express was never provided with a plan for the Station, and that NYCBS had been instructing Metro Express to install “supplemental street treatments” not depicted on the station plans, noting two specific instances in which they were ordered to do so in stations at Jay Street and Tech Place, and Charles Street and Greenwich [**87] Ave. Id. at 7-9.

While Metro Express and Sealcoat certainly raise issues of fact about their liability, there is sufficient information in the record to preclude a finding that they are entitled to judgment as a matter of law. For example, in addition to NYCBS’s allegations that Metro Express and Sealcoat were responsible for the installation, Ryan Landeck, Sealcoat Vice President, admitted in non-party deposition testimony in 2015 that Sealcoat had installed the wheel stop in question under Metro Express’s direction. ECF No. 289-10, Landeck 11/19/15 Depo. at 34, 45.16

16 Mr. Landeck later testified at a deposition that took place after Sealcoat was joined in the case that Sealcoat found that there was nothing to do be done at that location and Sealcoat did not invoice or receive payment for its alleged work at the station. ECF No. 368-3, Landeck 05/25/2016 Depo. at 51, 55. An October 23, 2013 email from Landeck to Michael Strasser, General Manager at Metro Express, further stated that “nothing was wrong at this station.” ECF No. 368-4.

Accordingly, the Court concludes that, unlike APD, there is a material dispute whether Metro Express and/or Sealcoat “launched a force or instrument of harm” if plaintiffs prove at trial that they negligently installed the wheel stop at the East 56th Street and Madison Avenue Citi Bike station in contravention of the site plan and the directions received from NYCBS. Unlike the case for APD, who provided general designs for hundreds of Citi Bike stations, there is no danger of an undue ballooning of tort liability because the contractors would be liable only for their own negligence and have an absolute defense if they can demonstrate [**88] that they were carrying out a pre-existing plan. Cf. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 430 (S.D.N.Y. 2014) (finding that Espinal and Moch stood for “the general public policy that courts will not impose a tort duty on a contracting party where doing so would expose the party to potentially unlimited and undefined liability” and finding a duty where there was “no risk of . . . boundless tort liability”).

Therefore, because the Court finds that a question of fact exists regarding whether Metro Express and/or Sealcoat “launched a force or instrument of harm,” Metro Express and Sealcoat’s motions for summary judgment are DENIED.

X. Gross Negligence Claims

Given that Corwin’s common-law negligence claims against NYCBS are barred by the enforceability of the Release Agreement as discussed in Part II of the opinion, NYCBS moves for summary judgment on the grounds that Corwin’s gross negligence claims fail as a matter of law.17

17 The City has also moved for summary judgment on this point; however, the Court has found that Corwin’s common-law negligence claims may proceed as to the City.

Under New York law, gross negligence is “conduct that evinces a reckless [*514] disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” Am. Tel. & Tel. Co. v. City of New York, 83 F.3d 549, 556 (2d Cir. 1996) (quoting Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821, 823-24, 611 N.E.2d 282, 595 N.Y.S.2d 381 (1993)). “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998). “In order to establish a prima facie case in gross [**89] negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.'” Travelers Indem. Co. of Connecticut v. Losco Grp., Inc., 204 F. Supp. 2d 639, 644 (S.D.N.Y. 2002) (quoting Hong Kong Exp. Credit Ins. Corp. v. Dun & Bradstreet, 414 F. Supp. 153, 160 (S.D.N.Y. 1975)).

Drawing all reasonable inferences in favor of Corwin, the nonmoving party, summary judgment is not appropriate on Corwin’s gross negligence claims. If, as argued by Corwin’s expert James M. Green, NYCBS is proven at trial to have unjustifiably ignored sound engineering practices and placed camouflaged wheel stops in the direct and foreseeable paths of cyclists, a reasonable factfinder could conclude that their conduct was sufficiently reckless and/or aggravated to meet the gross negligence standard. The defendants’ motion for summary judgment on Corwin’s gross negligence claims is therefore denied.

CONCLUSION

Corwin’s motion for summary judgment on defendants’ affirmative defenses relying on the Release Agreement is GRANTED as to the City and DENIED as to NYCBS. Corwin’s motion for summary judgment on defendants’ affirmative defenses relating to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions [**90] of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable, Corwin’s common-law negligence and professional negligence and malpractice claims are dismissed, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED. Metro Express and Sealcoat’s motions for summary judgment are DENIED.

The Clerk of Court is respectfully directed to terminate Dkt. Nos. 288, 295, 303, 304, 309, and 314 and terminate defendants Alta Planning + Design, Inc. and Alta Planning Design Architecture of New York, PLLC from the case.

SO ORDERED.

/s/ Sarah Netburn

SARAH NETBURN

United States Magistrate Judge

DATED: New York, New York

March 1, 2017


Safe, NOTHING is safe, when you advertise telling those who come to your website that your business, activity, or land is safe, you will be writing checks for anything pain, blood, illness or injury that can occur.

Website for park stated it was a safe place for visitors. Plaintiff went to the park because of that statement and when she fell on a rock protruding above the boardwalk, she sued. Is a rock sticking through a boardwalk a risk, normal or at least “not safe.”

The plaintiff was able to claim negligent misrepresentation because the park represented itself as safe. Safe is a Bad work.

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

State: New Hampshire: United States District Court for the District of New Hampshire

Plaintiff: Misha Kendall

Defendant: The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Plaintiff Claims: Negligence, Gross Negligence and Negligent Misrepresentation

Defendant Defenses:

Holding: for the plaintiff

Year: 2017

Summary

The website promoting the private park stated the park was safe. The plaintiff went, paid her fee and got hurt. Therefore, the park was not safe. The plaintiff was able to argue the statements made on the website about safety were negligent misrepresentation; Negligent statements made to induce the plaintiff to come to the park.

The second issue was a gap between a recently passed statute and decisions of the New Hampshire Supreme Court which effectively nullified the two immunity statutes by the legislature to protect the park.

Facts

There is always an issue of “when.” When did the plaintiff actually learn or see, but in this case, the court stated the following facts.

The land is owned by a nonprofit corporation, and is operated by a third party.

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s website, and the Society contributes to and approves the website’s content.

The land is protected from lawsuits by a specific statute that was enacted in 1917.

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River’s reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

So, the relationship with the state is, it is not a state park, but it is protected like one to a major extent.

The plaintiff alleges that was looking for an outdoor activity that would be safe for herself and her two six-year-old children. She went to the website of for the park to look for a “safe way” to view rock formations.

She took herself and her two children to the park, paid the entrance fee and proceeded to a boardwalk. The boardwalk was four feet wide and crowded. The boardwalk turned sharply after a bridge on the say to the Sun Altar cave. The plaintiff’s view was blocked after the turn because of the crowd, a sign and a large tree.

Just after the turn a boulder protruded up through the boardwalk about a foot.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

The plaintiff sued for her injuries.

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

The defendant raised four defenses to the gross negligence and negligent misrepresentation claims of the plaintiff.

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation.

The court first started with the immunity statutes. Besides the specific immunity statute enacted in 1917, there was a more recent statute, RSA 508.14, II.

508:14. Landowner Liability Limited.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

Emphasize added

What never enters the discussion is the fact the plaintiff paid to be on the land, so the recreational use statute, RSA 508.14 should not apply.

The court first decided if the new statute canceled out the old statute and made the termination that it did not. It then examined both statutes stating that the statutes should be strictly construed and viewed as being consistent with each other. Reading the first statute that one, the court found the first statute stopped claims for negligence, but not gross negligence.

The issue though is the New Hampshire Supreme court ruled that New Hampshire does not recognize gross negligence. There is only one form of negligence in New Hampshire, simple negligence.

However, because the statute in question stated that the defendant could be liable for gross negligence or willful or wanton misconduct, the court held the legislature wanted the plaintiff to be able to sue for gross negligence.

Therefore, the plaintiff’s allegations of gross negligence were outside of the immunity afforded by both statutes.

Gross negligence was defined by the court as:

…”very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.”

Based on that definition the court was able to find the boulder built in the middle of the boardwalk was gross negligence.

…Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross negligence in failing to remove or warn of the boulder.

The court tackled the negligent misrepresentation claim next. Negligent misrepresentation is “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” The website stated the place was safe and the plaintiff, in her opinion, found it wasn’t.

The court was not sold on the plaintiff’s allegations, however.

At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation.

Whether the statement on the website was actionable would be based upon several factors: whether or not it was puffing, slight exaggerations to close the sale that everyone knows are not true, the specificity of the statement, the knowledge of the person making the statement and the knowledge of both parties in relation to each other.

The plaintiff argued “that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers.”

The allegations made by the plaintiff were enough for the court not to dismiss them.

Consequently, the plaintiff will be allowed to amend her complaint to add additional claims, which would make the defendants motion to dismiss the original complaint moot.

So Now What?

Marketing makes promises that Risk Management has to Pay For. The marketing promised a safe place to recreate, and the plaintiff received in an injury there; therefore, the place was not safe.

Combine the statements made on the website with the gap between decisions of the New Hampshire Supreme Court and recent statutes in New Hampshire and the plaintiff was effective in keeping her claim alive.

What do you think? Leave a comment.

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

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

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

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

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2007 U.S. Dist. LEXIS 46490

June 27, 2007, Decided

June 27, 2007, Entered

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

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

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

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

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

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

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

OPINION BY: K. MICHAEL MOORE

OPINION

ORDER GRANTING SUMMARY JUDGMENT AS TO DEFENDANT’S LIABILITY

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

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

I. Background

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

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

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

II. Standard of Review

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

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

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

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

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

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

III. Discussion

A. The Pennsylvania Rule and Florida Statutory Law

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

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

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

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

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

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

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

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

C. Exoneration From Liability

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

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

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

E. Waiver and Hold Harmless Provisions of the Rental Agreement

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

IV. Conclusion

For the foregoing reasons, it is

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

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

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

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE


Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

Misha Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Civil No. 16-cv-428-LM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

June 21, 2017, Decided

June 21, 2017, Filed

CORE TERMS: gross negligence, boardwalk, negligent misrepresentation, immunity, river, boulder, leave to amend, futile, willful, citation omitted, immunity statutes, misrepresentation, nonprofit, website, bridge, repeal, trails, safe, common law right, misrepresentation claim, misconduct, construe, forest, entity, wanton, amend, path, internal quotation marks, formations, futility

COUNSEL: [*1] For Misha Kendall, Plaintiff: Benjamin T. King, LEAD ATTORNEY, Megan E. Douglass, Douglas Leonard & Garvey PC, Concord, NH.

For The Society for the Protection of NH Forests, White Mountains Attractions Association, Defendants: Robert E. Murphy, Jr., Wadleigh Starr & Peters PLLC, Manchester, NH.

JUDGES: Landya McCafferty, United States District Judge.

OPINION BY: Landya McCafferty

OPINION

ORDER

Misha Kendall brings suit against The Society for the Protection of New Hampshire Forests and White Mountain Recreation Association, Inc. alleging claims for negligence and gross negligence arising from her injuries and property damage sustained when she fell on a boardwalk at Lost River Gorge and Boulder Caves in Woodstock, New Hampshire. Defendants move to dismiss the complaint (doc. no. 13).

In response, Kendall objects and moves for leave to amend her complaint (doc. no. 20) to add factual allegations, remove her claim for negligence, and add a claim for negligent misrepresentation based on defendants’ statement on their website. Defendants object to the motion to amend.

The court first addresses Kendall’s motion for leave to amend her complaint, and then turns to defendants’ motion to dismiss.

I. Motion to Amend

In her proposed [*2] amended complaint, Kendall alleges claims for gross negligence and negligent misrepresentation. Defendants argue that the proposed amendment would be futile because they are immune from liability for both claims under 1917 New Hampshire Laws Chapter 19, § 1 (“1917 Law”) and because the proposed amended complaint fails to state a plausible claim for relief. Defendants also argue that the motion to amend is untimely.

Under Federal Rule of Civil Procedure 15(a)(2), the court will grant leave to amend a complaint “when justice so requires.” Despite the broad standard, a “court may deny leave to amend for a variety of reasons, including futility, bad faith, undue delay, or a dilatory motive on the movant’s part.” In re Curran, 855 F.3d 19, 27-28 (1st Cir. 2017) (internal quotation marks and citation omitted).

A. Timeliness

Defendants argue that Kendall’s motion should be denied because of undue delay, based on the time between when Kendall filed the original complaint and when she filed the motion for leave to amend.

Kendall brought suit as a pro se party, filing her complaint in state court on August 8, 2016. After defendants removed the case to this court, counsel entered an appearance on Kendall’s behalf on November 4, 2016. On December 7, 2016, defendant filed a motion to dismiss. [*3] Counsel responded to defendants’ motion to dismiss and then moved to amend on January 19, 2017. As such, the timing does not show undue delay, and defendants have not shown unfair prejudice that would result from allowing the amended complaint.

B. Futility

In the proposed amended complaint, Kendall alleges claims for gross negligence and negligent misrepresentation.1 Defendants contend that the proposed claims are futile.

1 Kendall also substitutes White Mountains Recreation Association, Inc. as the correct legal name for White Mountains Attraction Association.

1. Standard of Review

In assessing, before discovery, whether the claims in a proposed amended complaint are futile, the court uses the same standard that applies to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Curran, 855 F.3d at 28; Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006). The court takes the factual allegations in the proposed amended complaint as true and draws all reasonable inferences in favor of the plaintiff. Morgan v. Town of Lexington, 823 F.3d 737, 742 (1st Cir. 2016). Then, based on that view of the proposed amended complaint, the court determines whether the plaintiff has stated a plausible claim for relief. Curran, 855 F.3d at 28.

2. Background

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s [*4] website, and the Society contributes to and approves the website’s content.

In her proposed amended complaint, Kendall alleges that she was looking for an outdoor activity that would be safe for her and her two six-year-old children. Kendall read about Lost River on its website and noted the descriptions and information provided. In particular, Kendall read that there were boardwalks at Lost River that provided “a ‘safe way’ to view rock formations.” Doc. no. 20-1 at ¶ 9.

On August 8, 2013, Kendall decided to go to Lost River with her children. She was an experienced hiker and dressed accordingly. When she and her children arrived, she paid the entrance fee, and they entered Lost River.

After walking down a sandy path through the forest, Kendall and the children came to a boardwalk and a bridge over a river. The boardwalk was crowded and no more than four feet wide. The boardwalk turned sharply after the bridge on the way to the “Sun Altar” cave. Because of the turn, the crowd, a sign giving information about the cave, and a large tree, Kendall could not see ahead on the boardwalk after the bridge.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height [*5] of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

3. Discussion

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation. Kendall responded to the futility arguments in her reply.

a. Immunity

There are two immunity statutes at issue in this case, and the parties dispute which one applies to the claims in Kendall’s proposed amended complaint.

In 1917, the New Hampshire legislature provided the Society with immunity from liability for any negligence [*6] in constructing or maintaining paths, trails, and bridges. The 1917 Law states:

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

(emphasis added).

A more recent statute, RSA 508:14, II, provides immunity to any nonprofit entity, such as the Society, “that constructs, maintains, or improves trails for public recreational use,” from liability “for [*7] personal injury or property damage.” This more recent immunity statute, however, provides an exception for “gross negligence or willful or wanton misconduct.” RSA 508:14, II states:

Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

(emphasis added).

Defendants contend that Kendall’s claims are futile because the 1917 Law gives them immunity from any claim involving negligence, which they contend includes claims for gross negligence and negligent misrepresentation. Defendants argue that because the 1917 Law is more specific, as it applies directly to the Society rather than to all nonprofit entities, it controls over the more general immunity provision in RSA 508:14, II. Not surprisingly, Kendall argues that RSA 508:14, II, and not the 1917 Law, applies to the claims in her proposed amended complaint. Because RSA 508:14, II provides an exception for claims based on allegations of gross negligence, such as the claims she alleges in her proposed amended [*8] complaint, Kendall asserts that defendants are not entitled to immunity.

At first glance, one might conclude that in enacting RSA 508:14, II, the New Hampshire legislature repealed the 1917 Law by implication. That is, the more recent immunity statute applies to a far broader spectrum of landowners, which would include the Society. The doctrine of “repeal by implication” is generally disfavored, however, especially where, as here, the more recent statute contains no expression of a legislative intent to repeal the 1917 Law. See generally Branch v. Smith, 538 U.S. 254, 273, 123 S. Ct. 1429, 155 L. Ed. 2d 407 (2003) (holding that “repeals by implication are not favored” unless there is “a clearly expressed congressional intention” (internal quotation marks and citation omitted)); Diaz-Ramos v. Hyundai Motor Co., 501 F.3d 12, 16-17 (1st Cir. 2007) (“A general law does not repeal a special law unless such repeal is expressly stated or clearly arises from the legislative intent.”) (internal quotation marks and citation omitted).

Moreover, a court should avoid applying the disfavored “repeal by implication” doctrine where it is possible to read two laws as consistent with one another. Indeed, the New Hampshire Supreme Court directs that where “reasonably possible, statutes should be construed as consistent with each other.” EnergyNorth Nat. Gas, Inc. v. City of Concord, 164 N.H. 14, 16, 48 A.3d 960 (2012) (quoting In re Union Tel. Co., 160 N.H. 309, 319, 999 A.2d 336 (2010)) (internal [*9] quotation marks omitted). Therefore, if possible, the court should construe the 1917 Law and RSA 508:14, II “so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes.” Soraghan v. Mt. Cranmore Ski Resort, Inc., 152 N.H. 399, 405, 881 A.2d 693 (2005) (internal citation omitted).

Another rule of statutory construction at play here calls for the court to narrowly construe immunity statutes. See, e.g., Estate of Gordon-Couture v. Brown, 152 N.H. 265, 267, 876 A.2d 196 (2005). Specifically, the rule requires the court to give a narrow construction to the term “negligent” in the 1917 Law because the Law restricts the common law right to recover for injuries caused by another’s negligence. Id. As the New Hampshire Supreme Court explained, a court must:

strictly interpret statutes that are in derogation of the common law. While a statute may abolish a common law right, there is a presumption that the legislature has no such purpose. If such a right is to be taken away, it must be expressed clearly by the legislature. Accordingly, immunity provisions barring the common law right to recover are strictly construed.

Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 291, 923 A.2d 198 (2007) (internal citations omitted); see also Dolbeare v. City of Laconia, 168 N.H. 52, 54, 120 A.3d 146 (2015) (immunity statutes “in derogation of the common law right to recover, are strictly construed”).

In short, there are [*10] two rules of statutory construction that govern this dispute: courts should strictly construe immunity statutes and, where reasonably possible, courts should construe statutes as consistent with one another. Applying these principles, the court narrowly interprets the 1917 Law’s use of the term “negligent” to exclude gross negligence and wanton or willful conduct. Such a construction renders the scope of the immunity provided in 1917 Law consistent with the scope of immunity provided in RSA 508:14, II.

Defendants contend that New Hampshire law does not recognize a cause of action for gross negligence and, therefore, the term “negligent” in the 1917 Law necessarily includes gross negligence. In support of that assertion, they rely on Barnes v. N.H. Karting Ass’n, Inc., 128 N.H. 102, 509 A.2d 151 (1986), and the New Hampshire Supreme Court’s statement that “New Hampshire law does not distinguish causes of action based on ordinary and gross negligence.” Id. at 108.

By way of RSA 508:14, II, however, the New Hampshire legislature has included just such a distinction. In the context of nonprofit entities that maintain public trails for recreational use, the legislature has defined the scope of immunity by distinguishing between derivative degrees of negligence. Although the 1917 Law predates [*11] RSA 508:14, II, the court is not inclined to ignore the legislature’s unmistakably clear language exempting gross negligence from the scope of immunity in its more recent statute. Cf. Lee v. Chamberlain, 84 N.H. 182, 188, 148 A. 466 (1929) (“[W]here such doctrine is made the basis of a legislative rule, enforceable here, it cannot be treated as meaningless.”). Thus, the court finds that in the specific context at issue here, New Hampshire law does distinguish between ordinary and gross negligence.

For the reasons explained above, the court can–and therefore must–reasonably construe the 1917 Law and RSA 508:14, II as consistent with one another. As a practical matter, such a construction means that while both statutes provide immunity to defendants for claims based on allegations of negligence, neither provides immunity for claims based on allegations of gross negligence. The court therefore concludes that defendants are not entitled to immunity from Kendall’s claims to the extent they are based on allegations of gross negligence.

b. Merits of the Claims

Defendants contend that even if they are not immune from claims based on allegations of gross negligence or wanton or willful misconduct, the proposed amended complaint does not contain allegations that rise to that [*12] level. They also assert that the proposed amended complaint does not adequately allege a claim for negligent misrepresentation.

i. Gross Negligence

Gross negligence has been interpreted to mean “very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.” Beane v. Beane, 856 F. Supp. 2d 280, 307 (D.N.H. 2012) (internal quotation marks and citation omitted); see also Colston v. Boston & Me. R.R., 78 N.H. 284, 99 A. 649, 649 (1916) (noting “gross” in gross negligence means great and “willful” means with conscious knowledge).

In the proposed amended complaint, Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross [*13] negligence in failing to remove or warn of the boulder.

Drawing all reasonable inferences in Kendall’s favor, the proposed amended complaint sufficiently alleges gross negligence. Accordingly, the doctrine of futility does not bar Kendall’s request for leave to amend her complaint to allege a claim based on gross negligence.

ii. Negligent Misrepresentation

Defendants also contend that the proposed amended complaint does not adequately allege a claim for negligent misrepresentation. Kendall’s negligent misrepresentation claim is based on defendants’ statement on their website that there were boardwalks at Lost River that provided a “safe way” to view rock formations.

To state a claim for negligent misrepresentation, a plaintiff must allege facts that show “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” Wyle v. Lees, 162 N.H. 406, 413, 33 A.3d 1187 (2011). Defendants contend that the alleged misrepresentation identified in the proposed amended complaint is merely an opinion, not a statement of fact, and, therefore, cannot be the basis of a negligent misrepresentation claim.

Although statements of opinion do not generally provide a proper basis for a claim for misrepresentation, [*14] under “certain circumstances, an opinion may constitute the basis of fraud or misrepresentation.” DePalantino v. DePalantino, 139 N.H. 522, 524, 658 A.2d 1207 (1995) (citing cases); see also Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-cv-040-LM, 2014 U.S. Dist. LEXIS 54183, 2014 WL 1572559, at *16 (D.N.H. Apr. 18, 2014). At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation. See, e.g., Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (“Whether a statement is an actionable statement of ‘fact’ or mere ‘puffing’ depends upon a number of factors, including the statement’s specificity, the speaker’s knowledge, the comparative levels of the speaker’s and the hearer’s knowledge, and whether the statement relates to the present or the future.”).2

2 Defendants also assert that the negligent misrepresentation claim is not based on allegations of gross negligence or willful or wanton misconduct and, therefore, they are immune from liability under both the 1917 Law and RSA 508:14, II. Viewed generously, however, the proposed amended complaint alleges that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers. Whether defendants made the alleged misrepresentation with gross negligence requires factual development and cannot be determined at this stage of the litigation.

Defendants also contend that Kendall has not alleged damages that may be recovered for negligent misrepresentation. A plaintiff is entitled to her economic losses caused by a defendant’s negligent misrepresentation but is not entitled to damages for emotional distress. Crowley v. Global Realty, Inc., 124 N.H. 814, 817-18, 474 A.2d 1056 (1984).

Kendall makes no demand for damages in her proposed amended complaint that is specific to her negligent misrepresentation claim. Instead, at the conclusion of the proposed amended complaint, Kendall requests damages [*15] for medical expenses, lost wages and employment benefits, destroyed property, emotional distress and inconvenience, and loss of the enjoyment of life. Although she cannot recover for emotional distress and loss of the enjoyment of life under her claim for negligent misrepresentation, Kendall alleges other damages that are recoverable. Therefore, Kendall’s proposed negligent misrepresentation claim is not futile.

C. Result

The circumstances support allowing Kendall to amend her complaint. Defendants have not shown, at this stage of the case, that Kendall’s claims would be futile. Therefore, Kendall is granted leave to file her amended complaint.

II. Motion to Dismiss

Defendants moved to dismiss Kendall’s original complaint. When the amended complaint is filed, it will supersede the original complaint, making the motion to dismiss moot. Brait Builders Corp. v. Mass. Div. of Capital Asset Mgmt., 644 F.3d 5, 9 (1st Cir. 2011). For that reason, the motion to dismiss is denied as moot.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for leave to amend (doc. no. 20) is granted. Plaintiff shall file the proposed amended complaint attached to document no. 20 as the amended complaint on or before June 23, 2017. Defendants’ motion to dismiss (doc. no. 13) is denied as moot.

[*16] SO ORDERED.

/s/ Landya McCafferty

Landya McCafferty

United States District Judge

June 21, 2017


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.


Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Spectators are always the biggest risk of many outdoor recreational activities. Even if they are behind fences or lines, the creep closer to the event and if a competitor leaves the track or run, it is the event host who might pay for the damages to the spectators.

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Andrea Ochall et al.,

Defendant: William M. McNamer et al.,

Plaintiff Claims: negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium

Defendant Defenses: Assumption of the Risk

Holding: for the Defendants

Year: 2016

This court was almost tedious in its review of the facts and the application of the law to the facts in this case. This case is another one outside of the normal scope of this review; however, it covers assumption of the risk in infinite detail under Ohio’s law and deals with claims of spectators. Spectators are present at most sporting events and in some cases assume the risk, like the baseball rule at baseball games and sometimes do not.

The defendant land owner’s kids built  a go-kart track. The decision involves a go-kart track in a homeowner’s back yard. The track was just a simple asphalt track. There were no barriers, no bleachers, nothing else except one bench. The land owner worked for a paving company so the track was paved. There was also a paved driveway from the barn where the go-karts were kept to the track. The track was built for no other purpose than for the use and enjoyment of the landowners and people they might invite over.

The track owner’s next-door neighbors used the track a lot and owned a go-kart that was stored with the landowner’s go-karts. However, the neighbors never used the track without asking permission before hand.

One day, the neighbors wanted to invite their friends to the track. Those friends became the plaintiffs.

Everyone took turns driving go-karts around the track, including the plaintiff. When not driving the go-karts, most of the people seemed to congregate on the asphalt drive between the track and the barn. The plaintiff argued this was a safe environment and the place to stand. There were no barriers between this or any place around the track and the track.

Various times during the day, different people drove off the track. After going off the track people simply drove back on the track and kept racing.

When not racing, the plaintiff was taking pictures. Taking pictures obscured the plaintiff’s view of what was going on sometimes.

During one race, the headband of one of the go-kart drivers slid down over her eyes. She grabbed the headband and through it off. While doing so she drove off the track striking the plaintiff.

The last picture the plaintiff took was the driver throwing her headband off.

The plaintiff’s sued the paving company the landowner worked for, as well as the landowner. The paving company was dismissed earlier on its motion and was not part of this discussion.

The plaintiff’s sued the landowner and the neighbors who invited them. The trial court dismissed the plaintiff’s claims based on various motions filed by the different defendants. The plaintiff appealed. The arguments presented in the various motions were boiled down to two and discussed without regard to the plaintiffs and all defendants even though they filed separate motions.

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

The appellate court first looked at assumption of the risk and whether it applied to this case. Assumption of the risk means the defendant owes the plaintiff no duty. Therefore, there is no negligence. Ohio recognizes three types of assumption of the risk: express, primary and secondary (implied).

Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” “Express assumption of the risk applies when parties expressly agree to release liability.” “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a known risk that acts as a defense to plaintiff’s action.”

Primary assumption of the risk is the defense that is applied to people who voluntarily engage in sports or recreational activities.

Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”

The argument for this is some sports or recreational activities cannot be played without risk. If the risk is removed from the sport, then the value in playing or the sport disappears. Another baseball example is the batter assumes the risk of being hit by a badly thrown pitch. If you remove that risk, the batter has nothing to swing at and there is no game of baseball.

By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.”

Ohio law applies the doctrine of primary assumption of the risk to participants and spectators alike [emphasize added].

Thus, courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of owners, operators, and sponsors of recreational activities. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. The doctrine also applies to spectators and participants alike.

Assumption of the risk when applied to a sport or recreational activity is not dependent upon the plaintiff’s knowledge and appreciation of the risks of the sport or activity. Normally to assume the risk a person must know and understand the risk as required in primary assumption of the risk. In sporting or recreational activities, knowledge of the risk is immaterial. Whether a participant assumes the risk is solely based on the risks of the sport, not what the participant knows.

Furthermore, when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” (Noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.”

Those risks that apply are the ones directly associated with the activity. Consequently, a court must proceed with caution when examining the activity and the risks because assumption of the risk is a complete bar because no negligence can be proved. Was the risk that injured the plaintiff a risk of the sport and if so, was that risk increased by the activity of the defendant. If the risks are part and parcel of the sport, then the defendant does not owe a duty to the plaintiff.

[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.”

The doctrine of applying primary assumption of the risk to sports and recreational activities was created to ensure the sport was played vigorously and freely without fear of reprisal.

The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”);…

That doctrine then defines primary assumption of the risk when applied to a sport as:

…where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’

The test is then applied with a three-part test.

Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists.

Risks that are “foreseeable, common, and customary risks of the activity” are therefore assumed by participants whether they knew of the risks or not. The Ohio Supreme Court further defined the definition to mean “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.’”

Looking at the risks of go-karting the court found that it was an inherent risk of the sport for a go-kart to leave the track. (Since go-karts had been leaving the track all day, this seems pretty implicit and also gives the plaintiff notice of the risk, although not required by the definition of primary assumption of the risk.)

Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object, which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons.

Primary assumption of the risk barred the claims of the plaintiffs.

The court then looked at whether the actions of the driver who left the track and struck the plaintiff where reckless which would defeat the defense of assumption of the risk. The court looked at the definition of recklessness under Ohio’s law.

An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.

That conduct must be measured against how the sport is played.

What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.”

Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.”

The plaintiff argued the defendants were reckless in failing to inform the plaintiff of the rules of the track. The court found there were no rules and there was no obligation to create them. The track was a backyard track built by the songs of the landowner for their enjoyment. There were no rules nor was there a requirement for the landowner to create rules for the use of the track.

Additionally, there is no duty to reduce or eliminate the risks of a recreational activity. The only duty is to not increase the risk of the activity. Consequently, the land owners did not owe a duty to create rules for the track or to inform the spectators of any rules if they were created.

Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity

The son of the landowner who built the track stated he had a ruled that spectators should stay in the barn. However, he had never enforced the rule. The court found that rule of no real value and no duty to create, enforce it or tell the plaintiff about it.

Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

There was a bench located near the track. The defendant land owner’s son argued it was for racers to sit on between races to rest. The plaintiff argued it was there for spectators and built to entice the plaintiff to stand near it where she was injured. However, the court did not agree with this argument either.

However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.”

The plaintiff’s then argued it was reckless of the defendants to conceal the dangers of the track by failing to warn them of the risks or educating them of the dangers. However, they could not tie these arguments, failing to warn, to the injury received by the plaintiff. The court found even if they had been informed of the risks, it would not have changed anything; the plaintiff would still have probably been injured.

Another recklessness claim was directed at the adults in charge of the minor driver who injured the plaintiff when she drove off the track. However, again, they could not relate those claims to the cause of the accident.

Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident.

Finally, the plaintiff claimed the minor driver was reckless in how she drove.

Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall.

This argument failed because reckless conduct is a conscious act. There was no conscious decision to drive off the track. The decision was to remove the headband when it was blinding her.

…reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man

The court could not find in the plaintiff’s recklessness arguments, a proximate cause or a relationship in the arguments that might have or would have changed the way things happened.

However, every tragic accident does not result in tort liability. Because Mrs. Ochall primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

The appellate court agreed with the trial court, and the case was dismissed.

So Now What?

The first issue is assumption of the risk applies to spectators. Spectators have always been the unknown possible lawsuit at events. Spectators usually pay to see the event so recreational use statutes provide no protection. They do not sign releases because they are not participating. However, based on this definition of assumption of the risk and the idea that a spectator should assume the risk because they watch the sport, a spectator is prevented from sung when injured under Ohio Law.

The second issue is the clear definitions of assumption of the risk defined in this.

On a side note, the plaintiff hired an expert witness who opined that the landowner should have built a small elevated wooden platform for spectators to stand on next to the track.

Hawn stated that a “reasonable solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.”

The expert also opined that the spectator’s area should have been relocated to the inside of the track and elevated. (So you have a group of people above the track level all turning around together to watch the race……)

Can you see what would happen at backyard playgrounds, sandboxes and every other play or recreational device in backyards? Sand boxes would have to come with sneeze guards you see on salad bars so sand could not accidentally be thrown in a grandparent’s face.

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

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Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Andrea Ochall et al., Plaintiffs-Appellants/Cross-Appellees, v. William M. McNamer et al., Defendants-Appellees, Mark McMillen et al., Defendants-Appellees/Cross-Appellants.

No. 15AP-772

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

December 29, 2016, Rendered

PRIOR HISTORY:  [**1] APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 14CV-5498).

DISPOSITION: Judgment affirmed.

COUNSEL: On brief: Kitrick, Lewis & Harris, Co. LPA, Mark Lewis, Mark Kitrick, and Elizabeth Mote, for appellants. Argued: Mark Lewis.

On brief: The Carr Law Office, LLC, Adam E. Carr, and Eric K. Grinnell, for appellees William M. and Elizabeth McNamer. Argued: Adam E. Carr.

On brief: Lane Alton, Joseph A. Gerling, and Monica L. Waller, for appellees/cross-appellants Sharon and Mark McMillen. Argued: Monica L. Waller.

On brief: Hollern & Associates, and Edwin J. Hollern, for appellees James Porter and Jane Doe # 1. Argued: Edwin J. Hollern.

JUDGES: KLATT, J. SADLER, J., concurs. DORRIAN, P.J., concurs in and part dissents in part.

OPINION BY: KLATT

OPINION

(REGULAR CALENDAR)

DECISION

KLATT, J.

[*P1]  Plaintiffs-appellants, Andrea Ochall, her husband Robert Ochall, and their two minor children, appeal from a judgment of the Franklin County Court of Common Pleas, granting the motions for summary judgment of defendants-appellees, Sharon and Mark McMillen, James Porter and his minor daughter, Jane Doe, and William and Elizabeth McNamer (“Liz”). For the reasons which follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

[*P2]  On May 23, 2014, appellants [**2]  filed a complaint against the McNamers, the McMillens, Porter, Doe, McMillen Paving and Sealing, Inc. (“MP&S”), and McMillen Paving, Inc. The complaint asserted claims for negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium. The events giving rise to the complaint occurred on September 20, 2013, when Mrs. Ochall was seriously injured while watching a go-kart race on the McMillens’ property.

[*P3]  On the day of the incident, the McNamers had invited the Ochalls to their home in Hilliard, Ohio, for the purpose of using the go-kart track located on the McMillens’ property. The McNamers and the McMillens are next-door neighbors and very good friends. Liz McNamer and Robert Ochall are co-workers, and Liz McNamer had previously invited the Ochalls over to use the McMillens go-kart track in 2011. The Ochall family, both the adults and their two children, drove go-karts on the McMillens’ track during their visit in 2011. The Ochalls, however, had never met the McMillens before filing the [**3]  present lawsuit.

[*P4]  The McMillens’ son, Brian McMillen, with assistance from his younger brother Scott, constructed the go-kart track in the McMillens’ backyard between 1994-1995, when Brian was between the ages of 18 and 19-years-old. The McMillens own and operate a paving and sealing company, MP&S. Brian is now the vice president of MP&S, but was not when he originally constructed the track.

[*P5]  Brian and his brother built the track in their spare time, and used some company equipment to build it. The McMillens routinely used company equipment on their home projects. Brian explained that the track “basically is a twisted up driveway.” (Jan. 5, 2015 Brian McMillen Dep. at 62.) The McMillens have never charged anyone money to use the track and they do not operate the track commercially, it is something they simply use “to [their] liking.” Id. at 88.

[*P6]  Although the McNamers and the McMillens are close frends, the McNamers would always ask the McMillens for permission before bringing guests over to use the track. Thus, prior to the Ochalls’ 2013 visit, Liz McNamer asked the McMillens if they could bring the Ochalls over to use the track. The McMillens said yes, and Mark McMillen opened the McMillens’ [**4]  barn and prepared the go-karts for the group’s use.

[*P7]  The McMillens own five go-karts and the McNamers own one go-kart, but the go-karts are all the same make and model. Brian McMillen purchased all the go-karts from the same vendor shortly after he constructed the track, and the McNamers paid the McMillens directly for their one go-kart. Brian explained that he selected these specific go-karts because he “didn’t want to go so fast out there” so that people would “need helmets.” Id. at 109. Brian noted that the go-karts have “a bumper, * * * a full harness and had a roll cage,” and could reach a maximum speed of 28 miles per hour. Id. Brian also noted that he could not “recall whether or not we actually got a manual for the karts,” noting that he did not “remember even seeing a manual.” Id. at 115. The go-karts all have stickers on the back which advise the drivers that there is no bumping.

[*P8]  The McMillens store their go-karts in their barn, and there is a paved driveway which connects the barn to the track. The driveway connects with the track at the track’s start/finish line. Porter explained that people would generally congregate on the paved area next to the start/finish line in order “to trade positions [**5]  with the drivers or to watch people driving by.” (Dec. 30, 2014 James J. Porter Dep. at 41.) Liz McNamer stated that she “always stood” on the paved area near the start/finish line when she was at the track. (Feb. 10, 2015 Elizabeth G. McNamer Dep. at 56-57.) Mrs. Ochall stated that, during her visit in 2011, she was “instructed to stand in that — that particular area” by Liz McNamer. (Dec. 4, 2014 Andrea L. Ochall Dep. at 29.) No one told Mrs. Ochall where to stand during the 2013 visit. Id. at 135-36.

[*P9]  Brian McMillen testified that he designed the track “not to have any spectators.” (B. McMillen Dep. at 168.) Brian explained that, when he took “people out there, that’s part of my deal: Stay up in the barn until you come up and get in a kart.” Id. at 175. He also noted that anyone at the track had to “be aware. You’ve got cars going around the track. You have to be aware that that’s an issue.” Id. Mark McMillen had placed a bench at the back edge of that paved area next to the start/finish line. Brian explained that the bench was “by no means a bleacher,” as it was there simply for drivers to rest on between and after races. Id. at 170-71.

[*P10]  There are no barriers around the McMillens’ go-kart track, only painted edge lines. [**6]  Brian McMillen explained that he purposely did not construct barriers because barriers “would just be something for a kart to hit,” and would “give a much greater probability of making a car go airborn and possible flipping.” Id. at 168, 232. Accordingly, when driving on the McMillens’ go-kart track, “there are times you go off the track on a turn or you veer off for some reason or another. * * * And that happens regularly.” (J. Porter Dep. at 38.) Liz McNamer noted that she “went off into the grass” the first time she drove on the track. (L. McNamer Dep. at 40, 42.) She explained that it was “safe” for a driver to “go off the track and come back on.” Id. at 108-09. Porter noted that he had seen go-karts go off the track on the “big turns, * * * on the little turns, * * * on the straightaways,” and specifically stated that he had seen go-karts go off the track “coming out that final turn into the start/stop” area. (J. Porter Dep. at 38-39; 45-46.)

[*P11]  On the day of the incident, the Ochalls arrived with their two minor children, and two of their children’s friends. The McNamers’ son-in-law, Porter, was also present with his daughter, and the McNamers’ granddaughter, Doe. Doe was 11 years old; the Ochall children [**7]  and their friends were all 13 years old. The group met at the McNamers’ house, and walked through the adjoining backyards to the McMillens’ go-kart track. The McMillens were not present at the track; Sharon McMillen was at the grocery store and Mark McMillen was inside his home watching a football game.

[*P12]  Liz McNamer gave the group instructions regarding how to operate the go-karts, telling them, “the gas was on one side, the brake was on the other, the steering wheel.” (L. McNamer Dep. at 103.) Liz McNamer observed the children as they drove, noting that “[t]hey seemed to be doing pretty well. They seemed like they were able to manage going around the track.” Id. at 106. Liz McNamer noted that she watched the children driving to make sure that no one was “at risk,” and noted that she “didn’t see that.” Id. at 117.

[*P13]  There were more people than go-karts during the 2013 event, so both the adults and the children rotated using the go-karts throughout the day. As was typical at the McMillens’ track, multiple drivers drove off the track that day. Doe’s go-kart came all the way off the track and went into the grass, and Porter’s go-kart came partially off the track. One of the Ochall children drove off the track, “[a]ll [**8]  four wheels were off the track,” and Porter “had to push him out.” (J. Porter Dep. at 93, 95-96.) Liz McNamer stated that she “observed that day each child went off the track at some capacity.” (L. McNamer Dep. at 109.) Liz McNamer testified that, when Doe’s go-kart left the track earlier in the day, she spoke to her granddaughter and “cautioned her and advised her just to be careful. The ground was pretty saturated. * * * There was water standing, so I just wanted her to be aware and, you know, just cautioned her.” (L. McNamer Dep. at 129.)

[*P14]  Mrs. Ochall was aware that there were “no barriers, there’s no safety barriers” around the track. (A. Ochall Dep. at 137.) Mrs. Ochall also witnessed go-karts driving off the track on the day of the incident, and admitted that she knew “that [a go-kart] could come off the track.” Id. at 139. Indeed, two photographs Mrs. Ochall took that day depict go-karts which had driven partially and completely off the track. (See A. Ochall Dep; Defs.’ Exs. 3 and 4.) However, Mrs. Ochall believed that the paved area next to the start/finish line was “a safe environment. That is a safe zone.” (A. Ochall Dep. at 137.) No one ever told Mrs. Ochall that the paved area was [**9]  a safe zone. (See Dec. 4, 2014 Robert W. Ochall Dep. at 13; A. Ochall Dep. at 191.)

[*P15]  Mrs. Ochall drove a go-kart on the day of the incident. After driving, she stood around the track taking pictures. Mrs. Ochall’s camera had a telephoto lens, and there was a cup she had to put her eye up to in order to use the camera. Because she was taking pictures “one right after the other,” Mrs. Ochall admitted that she was “[n]ot always” able to see what was going on around her. Id. at 139-40. She admitted that her vision was “[p]robably” obstructed by her camera. Id. at 140.

[*P16]  After one to two hours at the track, the group decided they would hold one last race. Porter, Mr. and Mrs. Ochall, Mr. and Mrs. McNamer, and an Ochall child were all standing in the paved area adjoining the track near the start/finish line; the others participated in the race. During the second lap of the race, as Doe came into the turn which approached the start/finish area, “her hair band went over her eyes. She had grabbed it and thrown it off to get better vision. So as she grabbed it and thrown it off, * * * she went straight through” the paved area next to the track and struck Mrs. Ochall. (J. Porter Dep. at 117.) Mrs. Ochall was standing “10-12 feet to [**10]  the south of the painted edge line which delineated the marked boundary of the track surface” when the accident occurred. (Pls.’ Ex. C., Apr. 9, 2013 Choya R. Hawn Acc. Reconstruction Report at 8.) Porter noted that, the cars are “hard to steer with one hand,” so when Doe threw her headband “she kind of jerked as well,” which caused her to veer off the track. (J. Porter Dep. at 117.) Doe confirmed these events and told her father immediately after the incident that her “headband slipped over her eyes, and she threw it out and lost control.” Id. at 130.

[*P17]  Doe’s go-kart struck Mrs. Ochall directly and flung her into the air. When Mrs. Ochall landed, she suffered a serious spinal cord injury. The last photograph Mrs. Ochall took that day depicts Doe throwing her headband. (See A. Ochall Dep.; Defs.’ Ex. 5.) Prior to Mrs. Ochall’s injury, no one had ever been injured at the McMillens’ go-kart track. (L. McNamer Dep. at 44-45.)

[*P18]  Although each defendant filed separate motions for summary judgment, all defendants alleged that the doctrine of primary assumption of risk barred appellants’ negligence claims, and that there was no evidence of reckless or intentional misconduct. The McMillens further asserted [**11]  that, as they did not invite the Ochalls to their property, they could not be considered the social hosts of the Ochalls. The McNamers asserted that, as they were not the property owners, they could not be held liable for any condition on the McMillens property. MP&S and McMillen Paving, Inc. argued that McMillen Paving, Inc. was a shell corporation with no assets, and that MP&S did not design or construct the track.

[*P19]  Appellants filed a memorandum contra the defendants’ motions for summary judgment, asserting that “[n]othing occurred to alert [Mrs. Ochall] to any danger of go-karts driving into spectators in the seating area.” (Apr. 14, 2015 Pls.’ Memo. Contra at 8.) Appellants argued that primary assumption of the risk did not apply to the facts of this case, because the track was designed defectively and because all of the defendants had acted recklessly.

[*P20]  Appellants supported their memorandum contra with the report of their accident reconstruction expert, Choya Hawn. Hawn observed that, “[i]n the absence of any persons afoot the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) (Acc. Reconstruction Report at 13.) Hawn stated that a “reasonable [**12]  solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Id. at 16. Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.” Id. at 16, 18.

[*P21]  On May 6, 2015, the court issued a decision and entry denying the McMillens’ motion for summary judgment, in part, and granting the business entities’ motion for summary judgment. The court concluded that, as the McNamers had asked the McMillens if they could bring the Ochalls to the McMillens property, and the McMillens had granted the McNamers permission to do so, “an implied invitation between the McMillens and Plaintiffs occurred.” (May 6, 2015 Decision & Entry at 4.) As such, the court concluded that the Ochalls were the social guests of the McMillens. Regarding the entities, the court determined that McMillen Paving, Inc. had “never performed any business nor held assets, and never acted in the creation of the go-kart [**13]  track,” such that the company was an “inappropriate party to the suit.” Id. at 5. Regarding MP&S, the court concluded that the company “was not employed to create or maintain the go-kart track,” and that Brian McMillen was not acting in his capacity as an employee of the company when he constructed the track. Id.

[*P22]  On July 31, 2015, the trial court issued a decision and entry granting the McMillens’, the McNamers’, and Porter’s and Doe’s motions for summary judgment. The court observed that go-karting is a recreational activity, and concluded that, “[s]ince the risk of being injured by a go-kart leaving the track [was] a foreseeable risk of go-kart racing on the McMillen track,” the risk was “inherent to go-kart racing on a private, barrier-less backyard track.” (July 31, 2015 Decision & Entry at 7-8.) As such, the court concluded that primary assumption of the risk applied to bar appellants’ negligence claims, and that appellants could only recover if the defendants acted intentionally or recklessly to cause Mrs. Ochall’s injuries.

[*P23]  The “parties agree[d] that no one acted intentionally to injure Andrea Ochall on that day.” Id. at 8. Accordingly, the court addressed whether any of the defendants engaged in reckless [**14]  misconduct. Appellants argued that the defendants were reckless because they failed to enforce Brian McMillen’s no-spectator rule. The court observed that, while Brian McMillen had a no-spectator rule when he was at the track, Brian was not the property owner, and neither the McMillens nor Brian McMillen acknowledged Brian’s personal rule as a track rule. As such, the court concluded that “not allowing adult spectators at or near the track for races [was] not a rule, regulation, custom, or common practice of the track or races conducted at the McMillen track.” Id. at 11. The court also addressed appellants’ argument that the defendants were reckless because they had not read or implemented safety guidelines from the go-kart manufacturer’s or owner’s manuals. The court concluded that no defendant had a duty to inform appellants about those safety guidelines.

[*P24]  Regarding the McMillens, the court noted that, as the property owners, the McMillens had no duty to improve their track, as they only had a duty to “exercise ordinary care to prepare the property for social guests.” Id. at 12. Accordingly, the McMillens did not have “a duty to instruct guests on how to go-kart race or to implement any rules other [**15]  than those which the family uses on their land.” Id. at 14. The court observed that the McMillens merely allowed their neighbors and their neighbor’s guests to use their go-kart track. As such, the court did not find any evidence of reckless conduct by the McMillens.

[*P25]  Regarding the McNamers, the court noted that the McNamers similarly “did not have a duty to instruct guests on how to drive a go-kart.” Id. at 16. Regarding the McNamers supervision of Doe, the court noted that Liz McNamer told her granddaughter once to slow down. The court observed that “[a] single admonishment by a grandparent in the presence of the child’s parent” was “not sufficient evidence of recklessness.” Id. at 19. As there was no evidence indicating that the McNamers told appellants “they ‘had to’ stand on the adjacent asphalt area,” and as Liz McNamer also stood on the adjacent asphalt area, the court could not find that the “McNamer’s action of standing on the adjacent area rose to the level of reckless required by the theory of primary assumption of the risk.” Id. at 20.

[*P26]  Regarding Doe, the court concluded that Doe was not reckless, “because removing a hand from the steering wheel to clear one’s vision is the lesser of two evils. * * * [Doe] [**16]  did not intentionally drive into the spectator area, but was unable to correct her kart’s path in time to not strike Plaintiff.” Id. at 21. Regarding appellants claim that Porter was reckless by not removing Doe from the track earlier in the day, the court concluded that, as there was no evidence demonstrating that Doe was driving recklessly throughout the day, there was no reason why Porter should have removed Doe from the track.

[*P27]  Accordingly, the court concluded that primary assumption of the risk applied to the case, and that there was no evidence of reckless or intentional misconduct. As such, the court found the defendants entitled to summary judgment as a matter of law.

II. ASSIGNMENTS OF ERROR

[*P28]  Appellants appeal, assigning the following two assignments of error for our review:

1. THE TRIAL COURT ERRED APPLYING PRIMARY ASSUMPTION OF THE RISK TO HOLD THAT DEFENDANTS-APPELLEES WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW.

2. THE TRIAL COURT ERRED IN HOLDING THAT THERE EXISTED NO GENUINE ISSUES OF MATERIAL FACT CONCERNING DEFENDANTS-APPELLEES’ RECKLESS-NESS, THUS ENTITLING THEM TO JUDGMENT AS A MATTER OF LAW.

The McMillens have also filed a contingent cross-appeal, asserting the following sole, [**17]  assignment of error:

The Trial Court erred in denying in part the Motion for Summary Judgment of Appellees/Cross-Appellants Sharon McMillen and Mark McMillen and concluding that Appellants were social guests of the McMillens rather than licensees. The McMillens’ assignment of error is conditional upon the Courts’ ruling on the assignment of error of Appellants. If the Court overrules Appellants’ assignment of error, the McMillens will withdraw the cross-appeal.

III. STANDARD OF REVIEW

[*P29]   [HN1] Appellate review of summary judgment motions is de novo. Helton v. Scioto County Bd. of Comm’rs, 123 Ohio App. 3d 158, 162, 703 N.E.2d 841 (4th Dist.1997). “When reviewing a trial court’s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc Corp., 122 Ohio App. 3d 100, 103, 701 N.E.2d 383 (12th Dist.1997). We must affirm the trial court’s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327 (9th Dist.1995).

[*P30]   [HN2] Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse [**18]  to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party’s favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St. 3d 181, 183, 1997 Ohio 221, 677 N.E.2d 343 (1997).

[*P31]   [HN3] When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264 (1996). A moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party meets this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.

IV. FIRST ASSIGNMENT OF [**19]  ERROR — PRIMARY ASSUMPTION OF RISK

[*P32]  Appellants’ first assignment of error asserts that the trial court erred by applying the doctrine of primary assumption of the risk to the instant dispute. Appellants asserted various negligence claims against the defendants, and  [HN4] “in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “[A] successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law.” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).

[*P33]  [HN5]  “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). “Express assumption of the risk applies when parties expressly agree to release liability.” Crace at ¶ 11. “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a [**20]  known risk that acts as a defense to plaintiff’s action.” Id.

[*P34]  [HN6]  “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See also Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. “The rationale is that certain risks are so inherent in some activities that the risk of injury is unavoidable.” Crace at ¶ 13, citing Collier at 37. By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶ 12.

[*P35]  Thus,  [HN7] courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of [**21]  owners, operators, and sponsors of recreational activities. Crace at ¶ 12, 20. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 8, 802 N.E.2d 1116. The doctrine also applies to spectators and participants alike. Id. at ¶ 10.

[*P36]  Furthermore,  [HN8] when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry at ¶ 9. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 10 (noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997). See Rees v. Cleveland Indians Baseball Co., 8th Dist. No. 84183, 2004-Ohio-6112, ¶ 20, quoting Gum v. Cleveland Elec. Illuminating Co., 8th Dist. No. 70833, 1997 Ohio App. LEXIS 503 (Feb. 13, 1997) (explaining that “‘the baseball fan assumes the risk of being hit by a foul ball when [**22]  he takes his place in the stands, not at the moment the foul ball comes flying his way'”). Accordingly, Mrs. Ochall’s personal belief that the paved area next to the track was a safe zone is irrelevant to the primary assumption of the risk analysis.

[*P37]  [HN9]  “‘[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Gallagher at 432. “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Morgan at ¶ 14, citing Crace at ¶ 15. See also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744, ¶ 11. “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P38]   [HN10] The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” Marchetti at 99. See also Ferrari v. Grand Canyon Dories, 38 Cal. Rptr. 2d 65, 32 Cal. App. 4th 248, 253 (observing [**23]  that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 33 Cal. Rptr. 2d 777, 28 Cal. App. 4th 558, 565 (noting that “[d]uty is constricted in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).

[*P39]   [HN11] Whether to apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶ 12, citing Gallagher at 435. We therefore review the trial court’s application of the doctrine de novo. Id.

[*P40]  Appellants contend that the trial court disregarded relevant authority when it “looked only to ‘foreseeable’ and ‘common’ risks to invoke the doctrine.” (Appellant’s brief, at 16.) Appellants assert that the trial court “misunderstood and misapplied Ohio law” when it held that the risks which are foreseeable and common in the course of a sport or activity are the inherent risks of the activity. Id. at 16-17. The trial court observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part of the activity.'” [**24]  (Decision & Entry at 4, quoting Gentry at 144.)

[*P41]  In Gentry the Supreme Court of Ohio held that  [HN12] “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.'” Id. at ¶ 10, quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The court in Gentry noted that, “[o]bviously,” in Thompson, the court had “applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Id. at ¶ 11. See Thompson at 106 (noting that, because “[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf,” the plaintiff primarily assumed the risk of being hit by a golf ball by playing the game of golf).

[*P42]  [HN13]  Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. See Santho at ¶ 13 (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists. See id. (noting that it is “foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with [**25]  the barriers that set the perimeter of the skating surface”); Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 180-81, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925) (noting that it is “common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof”).

[*P43]  Thus, [HN14]  for primary assumption of the risk purposes, the risks inherent in an activity are the foreseeable, common, and customary risks of the activity. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 9 (noting that the “types of risks associated with the activity are those that are foreseeable and customary risks of the activity”); Deutsch v. Birk, 189 Ohio App.3d 129, 2010-Ohio-3564, ¶ 13, 937 N.E.2d 638 (12th Dist.). Accordingly, the trial court did not err by concluding that the foreseeable and cutomary risks of an activity are the inherent risks of the activity. See Gentry at ¶ 10, quoting Thompson at 104 (primary assumption of the risk applies to “‘conduct that is a foreseeable, customary part’ of the activity”).

[*P44]  Appellants further contend that the the “trial court improperly applied the doctrine when it failed to analyze whether the risks that injured Plaintiff-Appellant were inherent, necessary or unavoidable, [**26]  i.e., whether they could be eliminated.” (Appellant’s brief, at 17.) Appellants assert that the trial court “ignored” the “various ways” the danger to spectators “could have been eliminated.” Id. at 23. Relying on the accident reconstruction report, appellants assert that “the ‘potential’ danger to spectators could have been easily eliminated by (1) moving the spectator area, (2) elevating the spectator area by wooden deck, (3) installing simple barriers between the track and spectators, or (4) warning guests about the no-spectator rule.” Id. Appellants, however, misconstrue the meaning of risks which “cannot be eliminated.”

[*P45]   [HN15] The Supreme Court of Ohio has held that “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath at ¶ 19, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). In Horvath, the court observed that “collisions between skiers are an inherent risk of skiing,” as “‘other skiers are as much a part of the risk in downhill skiing, if not more so than the snow and ice, elevation, contour, speed and weather conditions.'” Id. at ¶ 20, quoting Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 25 (noting that, “by its very nature, karate, [**27]  as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated”). To determine the risks which are so inherent in an activity that they cannot be eliminated, a court must “focus[] exclusively upon the activity itself.” Schnetz at ¶ 28. See also Crace at ¶ 25.

[*P46]  For example, in Brumage v. Green, 2d Dist. No. 2014-CA-7, 2014-Ohio-2552, the court observed that “‘[l]osing control and flipping an ATV is a foreseeable and customary risk associated with the activity of driving or riding on an ATV.'” Id. at ¶ 14, quoting Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065, 2008-Ohio-5239, ¶ 56. The plaintiff argued that certain factors specific to the incident, including that he was driving the ATV on a public roadway, made the risks he faced “greater than are customary in the recreational activity of riding ATVs.” Id. at ¶ 15. The court refused to address the plaintiff’s incident specific arguments, because “flipping off an ATV and getting injured is a risk that is inherent in the recreational activity of riding an ATV.” Id. at ¶ 16. The Brumage court observed that, “‘[w]hat causes the driver to lose control is better addressed when determining whether the driver acted intentionally, [or] recklessly.'” Id. at ¶ 16, quoting West v. Devendra, 7th [**28]  Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 26, 985 N.E.2d 558. See also Morgan v. Kent State Univ. at ¶ 22, 25.

[*P47]  Accordingly, in analyzing the risks inherent to go-karting, we must focus exclusively on the activity of go-karting, and not on the actions or omissions of the defendants in this case. See Crace at ¶ 25 (observing that, if the law treated participants differently from nonparticipants, the primary assumption of the risk analysis would shift “away from the activity and its inherent risks,” and would “unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification as a participant, non-participant, * * * sponsor, provider, or otherwise,* * * with no regard for the inherent risks of the activity”). Appellants’ contentions regarding the things the defendants could have done to alter the McMillens’ track for the benefit of spectators essentially amount to claims that the various defendants were reckless. See Morgan v. Church of Christ at ¶ 16.

[*P48]  Additionally, appellants’ arguments regarding the “risks to spectators” at the McMillens’ track improperly attempts to shift the focus of the analysis away from the risks inherent in the activity. (Appellant’s brief, at 20.) [HN16]  Because the primary assumption [**29]  of the risk analysis focuses on the risks inherent in the activity at issue, spectators and participants are treated the same. Indeed, “spectators as well as participants ‘must accept from a participant conduct associated with that sport’ or activity.” Gentry at ¶ 10, quoting Thompson at 104. See also Taylor v. Mathys, 3rd Dist. No. 14-04-32, 2005-Ohio-150, ¶ 10, citing Gentry at ¶ 6 (noting that primary assumption of the risk’s “limitation on liability extends to the spectators of a recreational activity as well as the participants”); Crace at ¶ 25. “‘[T]hose entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game.'” Gentry at ¶ 12, quoting Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002).

[*P49]  Focusing on the activity at issue herein, we observe that go-karting is a recreational activity involving motorized go-karts which are propelled forward around a racetrack by a driver. During a race, a go-kart driver will attempt to drive their go-kart past the other go-karts in the race in order to be the first go-kart to cross the finish line. The joy of go-karting derives from attempting to maintain control over one’s go-kart while maneuvering, [**30]  at speed, around the go-kart track and the other go-karts present on the track. Accordingly, [HN17]  the inherent risks of go-karting include running into other go-karts on the track, or deviating from the track and running into any object present around the track. See Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263, 654 N.Y.S.2d 169 (1997) (where the plaintiff’s “go-kart veered off its intended course, striking the wall in the pit area head on,” the court observed that, “[i]n riding the go-cart, the plaintiff * * * assumed the risks inherent in the activity,” which included that the “go-cart would bump into objects”); Garnett v. Strike Holdings LLC, 131 A.D.3d 817, 820, 15 N.Y.S.3d 786 (2015) (noting that “the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart”). Compare Jussila v. United States Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn.App.1996) (noting that “a snowmobile takes on a more dangerous character when operated on a racetrack by competitors attempting to win races”).

[*P50]  Accordingly, [HN18]  the risk that a go-kart may veer off the track and strike any object present nearby is a risk inherent to go-karting. As such, Mrs. Ochall assumed that risk in the primary sense when she stood 10 to 12 feet away from the McMillens’ go-kart track while a go-kart race was in process.

[*P51]  Appellants [**31]  assert that the trial court erred “by conflating the duty analysis under primary assumption of the risk with the social host duty of care in premises liability cases.” (Appellant’s brief, at 27.) The trial court noted appellants’ argument that “a risk is not inherent if it can be eliminated with due care,” but concluded that, because “[d]efendants, as social hosts, did not have an additional duty to make adjustments to the private, residential track, * * * the risk in question [was] a risk inherent to go-kart racing on a private, barrier-less backyard track.” (Decision & Entry at 5, 7-8.) Appellants contend that the trial court’s analysis improperly mixed “duty with breach.” (Appellant’s brief, at 27.) We agree.

[*P52]  The trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. Instead, the trial court wrongly focused on the defendants, and the duty they owed to appellants, rather than focusing on the activity at issue. See Schnetz at ¶ 30 (finding that the trial court erred by concluding that primary assumption of the risk did not apply “to inmate claims against a prison because a prison owes a duty of care to inmates in its custody and [**32]  control,” as such a “holding shift[ed] the focus of the analysis away from the activity and its inherent risks and improperly focuse[d] upon the extent of the defendant’s involvement and the defendant’s classification”).

[*P53]  Although the trial court erred by considering the defendants’ duty under the primary assumption of the risk analysis, this error does not amount to reversible error. Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons. See Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 115, 637 N.E.2d 963 (2d Dist.1994) (noting that, since the reviewing court must independently determine, as a matter of law, whether summary judgment was properly granted, “[a] summary judgment based on a legally erroneous analysis of the issues must be affirmed if the appellate court independently determines that upon the record summary judgment should have been rendered [**33]  as a matter of law, albeit for different reasons”).

[*P54]  Appellants assert that the trial court disregarded the two Ohio go-karting cases, Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999) and Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002), in reaching its summary judgment decision. The trial court noted the cases, but correctly found the cases inapplicable to the present dispute. (See Decision & Entry at 5-6.)

[*P55]  In Reed the plaintiff was injured at a charity go-kart race being held on city streets. The race organizers had placed a four-foot high fence and bales of hay around the race perimeter to separate the sidewalk from the racetrack. The plaintiff was “initially watching the race from a spectator area,” but had moved to another area to watch the race, which was still “protected by the orange fencing” but had “fewer hay bales.” Id. Two go-kart drivers collided during the race, causing one go-kart to veer off the track and strike the plaintiff. The court stated that it was “not convinced that injury to a spectator [was] the kind of risk so inherent to the sport of go-kart racing that the appellant could be deemed to have consented to it.” Id. The court noted that the plaintiff “testified that she observed [**34]  other accidents during go-kart races and that there had, in fact, been several other accidents on the day she was hit.” Id. The court concluded that simply observing other go-karts run into each other did “not mean that injury to spectators as a result of karts leaving the track [was] inherent to racing,” but stated that it “raise[d] a question of fact as to whether such risk was obvious to appellant.” Id.

[*P56]  As Reed is a decision from the Third District Court of Appeals, it holds no precedential value in this district. Furthermore, as the Reed court failed to engage in a proper primary assumption of the risk analysis, we do not find the decision persuasive. Reed did not attempt to ascertain the risks inherent to the activity of go-karting. Instead, the court simply concluded that injury to spectators was not an inherent risk of go-karting. In so concluding, the court treated spectators differently from participants, in violation of Gentry. The Reed court also inappropriately considered the plaintiff’s subjective understanding of the risk, in further violation of Gentry.

[*P57]  Unlike the present case which concerns a private, free, backyard go-kart track, in Goffe the plaintiff was a business invitee [**35]  at a commercial go-kart track. The plaintiff was injured exiting her go-kart at the end of the ride when another driver accidently accelerated and “struck a parked go-cart in the off-loading area of the track,” which then “struck Ms. Goffe in the leg.” Id. The plaintiff alleged defective design had caused her injury because, at the end of the ride, a gate would funnel the go-karts “into a confined pit area so that a runaway go-cart had no option but to strike go-carts in the unloading area.” Id. The court observed that “[o]ne who rides an amusement device assumes the ordinary risks inherent in the ride, insofar as those risks are obvious and necessary, but only so long as the device is properly designed and the operator has used proper care in its construction and operation.” Id., citing Pierce v. Gooding Amusement Co., 55 Ohio Law Abs. 556, 90 N.E.2d 585 (1949). The court concluded that the business had breached its “duty of ordinary care to Ms. Goffe by desiging an amusement ride which created an unreasonable danger that the rider would be injured while exiting the ride but before reaching a place of safety.” Id.

[*P58]  Relying on Goffe, appellants contend that primary assumption of the risk cannot apply in this matter, because defendants “enhanced the unusual risk [**36]  to spectators by operating a defective track.” (Appellant’s brief, at 23.) Appellants assert that defendants “failed to design, build and operate the track to account for spectator safety by, among other steps, moving the spectator area inside the track and elevating it.” Id. at 24. Appellants argue that the track was defective because defendants “built and maintained a ‘short chute’ at the final high-banked turn to create faster go-kart speeds approaching the spectator area.” Id. However, there is no evidence in the record indicating that either the short-chute or the high-banked turn created faster go-kart speeds, or that these aspects of the track caused the accident.

[*P59]  Brian McMillen explained that, in 2010-11, he “raised the elevation” on the curve approaching that start/finish area in order to “control flooding from the pond and the ground water.” (B. McMillen Dep. at 135.) The alteration resulted in the track “dropping three or four inches over that 30-40 feet” as a kart approached the straightaway into the start/finish line. Id. at 149. Brian referred to the straightaway as a “short chute,” explaining that a “short chute” is just a “small piece of straightaway between two turns.” Id. at 150. Notably, Brian [**37]  confirmed that this alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” Id. at 149.

[*P60]  Hawn concluded that “it was mathematically possible for a kart to be driven successfully through the high-banked curve at the south end of the track” approaching the start/finish area “at full (maximum) speed,” and explained that “[t]he laws of Newtonian physics dictate that if a kart were to exceed the critical speed of the high-banked curve or fail to maintain a traversable line through the curve, the kart will break tracation and likely slide towards the outside of the curve beyond the apex.” (Acc. Reconstruction Report at 10, 13. ) Hawn stated that Doe’s go-kart was travelling between 18 to 25 miles per hour when it struck Mrs. Ochall, “which was consistent with the critical speed calculations for the kart traversing the high-banked curve.” Id. at 11. Thus, Doe did not exceed the critical speed of the high-banked curve. Although Hawn referred to the high-banked curve as the “fastest curve of the track,” he did not find that the curve created unreasonably fast go-kart speeds or that the curve would cause a driver to lose control of their go-kart. Id. at 13.

[*P61]  Indeed, Hawn [**38]  concluded that the “design, layout, construction and overall environment of the track facility (with the generous clear zone) was reasonably safe for the ‘operators of the karts.'” Id. at 17. Hawn also stated that the “the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) Id. at 15. Thus, appellants own expert concluded that the design of the track was safe. Appellants have failed to demonstrate a genuine issue of material fact regarding whether the track was designed defectively.

[*P62]  Appellants’ contention that the McMillens’ track was defectively designed because there was no infield, elevated, spectator platform, does not amount to an argument that the track was designed defectively. An elevated viewing platform would not be part of the track itself; rather, it would be a separate structure near the track. Appellants’ contention that defendants should have constructed a viewing platform for spectators, or taken other actions for spectators, do not allege that the track itself was designed defectively, but are essentially claims that the defendants were reckless by failing to build a spectator platform.

[*P63]  Based on the foregoing, we find that Mrs. Ochall [**39]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track. Appellants’ first assignment of error is overruled.

V. SECOND ASSIGNMENT OF ERROR – RECKLESSNESS

[*P64]  Appellants’ second assignment of error asserts that the trial court erred in finding no genuine issues of material fact regarding defendants’ recklessness.

[*P65]  [HN19]  An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.'” Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Thompson at 105.

[*P66]  Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, [**40]  it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.” Id. Conversley, “any conduct which is characterized by the strong probability of harm that recklessness entails, and which occurs outside the normal conduct and customs of the sport, may give rise to liability.” Id. In assessing recklessness, courts must recognize the “inverse relationship between duty and dangerousness,” as the “‘quid pro quo of an “assumed greater risk” is a diminished duty.'” Id., quoting Hanson v. Kynast, 38 Ohio App. 3d 58, 64, 526 N.E.2d 327 (5th Dist.1987).

[*P67]  Appellants assert that the trial court “wrongly construed evidence regarding Defendants’ failure to warn Andrea Ochall about the track builder Brian McMillen’s design and rule prohibiting spectators in a light most favorable to [plaintiffs].” (Appellant’s brief, at 34.) Appellants assert that, construing the evidence in their favor, there are genuine issues of material fact regarding whether McMillens and/or McNamers disregarded Brian McMillen’s rule and “knowingly failed to warn or inform Andrea Ochall about the Brian McMillen’s design and policy.” Id. at 38.

[*P68]  As noted above, Brian McMillen testified that he did not design the track to account for spectators. (B. McMillen Dep. [**41]  169.) Brian explained that he “rarely” had spectators at the track, but that when he did, he told them to “[s]tay up in the barn.” Id. at 172, 175. However, Brian also did not enforce his no-spectator rule when he was at the track. Brian noted that when the track was first built his “dad may come out or one of [his] friends may come out and stand somewhere in that vicinity,” of the paved area next to the start/finish line, “and watch us turn a couple laps.” Id. at 172. Brian stated that he had never kicked any spectator of the paved area next to the start/finish line. Id. at 182-83.

[*P69]  Sharon McMillen noted that Brian told her “[a] couple of years ago” that he had a no-spectator rule when he was at the track, but she clarified that he never told her that the track wasn’t designed for spectators. (Feb. 10, 2015 Sharon McMillen Dep. at 104-05. Sharon noted that, when she was out at the track, she would stand “[u]sually in the grass out by the corner where the bench sits,” explaining that’s “just where we stand.” Id. at 100, 102. Sharon stated that she previously stood on the paved area next to the start/finish line when Brian was also present at the track, and that he never told her to move from that location. Id. at 130.

[*P70]  Indeed, for adult spectators at the McMillens’ [**42]  go-kart track, there “was no rule” regarding where they had to stand. Id. at 108-09. Sharon McMillen noted, “[t]here’s seven acres they can stand on. They can stand anywhere.” (S. McMillen Depo. 108.) Sharon believed it was safe for people to stand on the paved area next to the start/finish line at the track, “[a]s long as they’re watching what’s going on.” Id. at 102, 108.

[*P71]  The McMillens, as the property owners who granted the McNamers permission to bring the Ochalls upon their land, were the implied social hosts of the Ochalls. See Estill v. Waltz, 10th Dist. No. 02AP-83, 2002-Ohio-5004, ¶ 32 (noting that,  [HN20] to be classified as a social guest, “the evidence must show the host extended to the guest an actual invitation, express or implied”). As social hosts, the McMillens owed their guests the following duties: (1) to exercise ordinary care not to cause injury to their guests by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will [**43]  not discover such dangerous condition. Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951), paragraph three of the syllabus. Accordingly, the McMillens had a duty to warn the Ochalls of any dangerous condition on their premises which the McMillens had reason to believe the Ochalls did not know about and could not discover.

[*P72]  As the lack of barriers around the McMillens’ track was readily apparent, there was no dangerous condition about the track which the McMillens should have had any reason to believe the Ochalls did not know about or could not discover. Indeed, Mrs. Ochall saw go-karts driving off the track throughout the day, and admitted that she knew that there “was no barrier in front of [her] * * * to protect [her] from getting hit by a car if it left the track.” (A. Ochall Dep. at 172-73.) Accordingly, the McMillens had no duty to warn appellants about Brian McMillen’s personal track rule. As such, viewing the evidence in a light most favorable to the Ochalls, we are unable to find a genuine issue of material fact regarding whether the McMillens intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Section 500, at 587 (1965). As such, the McMillens were not reckless by failing to inform [**44]  appellants about Brian’s rule.

[*P73]  Regarding the McNamers, appellants assert that the McNamers were reckless because they “knew of [Brian McMillen’s] prohibition and failed to inform guests.” (Appellant’s brief, at 36.) Liz McNamer stated that she could not recall if Brian McMillen ever told her about his no-spectator rule, noting that “[h]e could have told [her] husband, but * * * [she didn’t] recall.” (L. McNamer Dep. at 66.)

[*P74]  During Brian McMillen’s deposition, counsel asked him if he ever told “people, including the McNamers or anybody, that if you’re not driving a go-kart, then you better not be standing anywhere on this track, whether it’s the access road, sitting on that bench, anywhere on this asphalt period?” (B. McMillen Dep. at 175.) Brian responded, stating:

Absolutely. Absolutely we’ve talked about that with the McNamers, with Michael, their son, with my brother, myself, my dad, we’ve all discussed the common sense rules of the road that we’re going to follow out here on this go-kart track. Absolutely.

* * *

And, again, you know, it’s not like we sat down and said, hey, let’s write a rule book for the track. I’m talking about general guys hanging out in the garage, garage talk, hey, [**45]  these are the rules of the road we’re going to follow. Again, we’re not putting together a commercial facility here. We’re going — we’re putting together a little backyard toy here.

Id. at 175-76.

[*P75]  When asked if he told the McNamers that he “didn’t build this track for there to be any bystanders. And that if you’re not racing, no one is allowed to be standing around watching people racing or in go-karts going around the track on any part of this asphalt,” Brian stated “[t]hat’s just generally speaking what we have always gone with.” Id. at 177.

[*P76]  Liz explained that everytime she had ever been to the track people would be standing in the paved area adjacent to the start/finish line. (L. McNamer Dep. at 67.) Liz also always stood in that area and believed it was safe to stand there as long as “you’re observing and — and paying attention and watching what’s occurring.” Id. at 56-57. Porter similarly testified that whenever he had been to the track, people always stood on the asphalt near the start/finish line. (J. Porter Dep. at 44.)

[*P77]  To determine whether the McNamewrs were reckless in failing to inform the Ochalls about Brian McMillen’s personal track rule, we ask whether the McNamers intentionally failed to inform the Ochalls about [**46]  Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). As noted, [HN21]  primary assumption of the risk “‘relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity.'” Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 2007-Ohio-1800, ¶ 34, 874 N.E.2d 811 (10th Dist.), quoting Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225, 236, 2002 Ohio 1850, 776 N.E.2d 1126 (1st Dist.2002).

[*P78]  The parties do not direct us, and our independent research has failed to produce, an Ohio case delineating the duty which a non-landowner, sponsor or organizer of a free activity owes to the participants of the activity.  [HN22] Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recereational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity.” Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 1162, 150 Cal. Rptr. 3d 551, 290 P.3d 1158 (2012).1 See also Saville v. Sierra College, 36 Cal. Rptr. 3d 515, 133 Cal. App. 4th 857 (2005) (noting that an “organizer of an activity is under a duty not to increase the risk of injury inherent in the activity”); Estate of McNeil v. FreestyleMX.com, Inc., 177 F.Supp.3d 1260 (S.D.Cal. 2016) (noting that the “organizer and promoter of the freestyle motocross event” owed the plaintiff a limited duty of care, “breached only if they increased the risk beyond that which is inherent to the activity itself”); Amezcua v. Los Angeles Harley-Davidson, Inc., 132 Cal. Rptr. 3d 567, 200 Cal. App. 4th 217 (2011) (concluding that the sponsor of the activity, had not “increased the inherent danger [**47]  of riding in an organized motorcycle ride,” because “traffic slowing and other drivers not paying attention are inherent risks of riding in an organized motorcycle ride on public highways,” and to close down the freeway in order to eliminate these risks “would alter the parade-like nature of riding in a motorcycle procession on a public highway”).

1 In Nalwa the plaintiff argued that sponsors of recreational activities should owe a greater duty to participants. The court disagreed, holding as follows:

 [HN23] A rule imposing negligence duties on sponsors, organizers and operators of recreational activities would encompass not only commercial companies like defendant but also noncommercial organizations without extensive budgets or paid staff. Such groups might not easily afford insurance to cover injuries that are inherent risks of the activity; nor could they readily collect large fees from participants to cover that cost. 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.

Nalwa at 1162.

 [*P79]  Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. [**48]  Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

[*P80]  Appellants next assert that the trial court “ignored factual issues regarding Defendants’ concealing the danger from Andrea Ochall by installing a bench to entice her to congregate on the paved area next to the track not designed for spectators.” (Appellants’ brief, at 38-39.) Mr. McMillen had placed a light, moveable, park style bench on the back of the paved area adjoining the start/finish line. (S. McMillen dep. at 106.) Brian McMillen explained that the bench was for drivers to [**49]  sit on following a race, noting that, after a race, “you’re tired, your back hurts, your legs are sore, you’re sweating. * * * A guy will sit on that bench and relax for a minute.” (B. McMillen Dep. at 170.)

[*P81]  Sharon McMillen agreed with counsel that someone might think “if there’s a bench around, that that may be a safe place to be because there’s a bench where you could sit.” (S. McMillen Dep. at 106.) However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.” (J. Porter Dep. at 107.) Compare Kacsmarik v. Lakefront Lines Arena, 8th Dist. No. 95981, 2011-Ohio-2553, ¶ 10, 13 (concluding that the “bench was not the proximate cause of [plaintiff’s] injuries,” as the plaintiff was not “sitting on the bench when she was injured” as she had “left the bench, [and] opened the ice rink door”).

[*P82]  Construing the evidence in appellants’ favor, [**50]  we cannot find that the McMillens knew or had reason to know of facts which would have lead them to realize that placing a bench near their go-kart track created an unreasonable risk of physical harm to another, or amounted to conduct substantially greater than negligent conduct. Simply placing a bench by the track did not create an unreasonable risk of physical harm to others, as the bench did not obsecure anyone’s ability to appreciate the barrier-less nature of the go-kart track.

[*P83]  Appellants also state that Hawn concluded that Brian McMillen’s 2010-11 alteration to the track, “enhanced the danger to spectators by creating greater risk go-karts would lose control.” (Acc. Reconstruction Report at 13-14.) (Appellant’s brief, at 41.) Appellants assert that “[t]his remodeling and the enhanced risk were not known to Andrea Ochall, whereas McMillens knew that they had made the track faster for go-karts approaching the spectator area where they had placed the bench.” (Appellant’s brief, at 41.) Although appellants do not directly argue that the McMillens acted recklessly by altering their track, we observe that the McMillens were not reckless in this regard, as there is no evidence linking the [**51]  2010-11 alteration to an increased risk that a driver would lose control of their go-kart.

[*P84]  Hawn stated that the paved area next to the start/finish line, and “just beyond the exit to the fastest curve of the track,” would be a danger zone to persons afoot, but only “if a driver should experience such a loss of control and deviate from the track.” (Acc. Reconstruction Report at 13.) Similarly, Hawn stated that the paved area next to the track was dangerous for spectators, but only in the event that “a kart deviated from the track, at speed, due to driver loss of control in the curve.” Id. at 14. Thus, Hawn’s opinion that the paved area next to the start/finish line was unsafe for spectators was based on if a driver should lose control of their go-kart. Hawn did not find that the elevation of the curve, or that the straightaway itself, would cause a driver to lose control of their go-kart. Brian confirmed that the 2010-11 alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” (B. McMillen Dep. at 149.)

[*P85]  Furthermore, Hawn opined, and the record supports, that it was Doe’s act of “discarding an unwanted headband” which caused her to fail [**52]  to “maintain steering control [which] was a significant causative factor” of the accident. (Acc. Reconstruction Report, 14-15.) Thus, it was Doe’s act of removing her hand from the steering wheel to remove her headband from her face, and not the elevation of the high-banked curve, which caused the accident.

[*P86]  Appellants also state that “an easy, inexpensive precaution” for the McMillens was to “relocate the spectator area to the inside of the track and raise the elevation where their guests stood.” (Appellant’s brief, at 41.) Appellants do not directly assert that the McMillens acted recklessly by failing to construct an elevated spectator platform. Regardless, the McMillens were not reckless by failing to construct a spectator platform, because they had no duty to do so.  [HN24] “‘There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises.'” Scheibel at 315, quoting 38 American Jurisprudence 778, Section 117.

[*P87]  Appellants next assert that defendants concealed the “danger by failing to educate themselves about [**53]  safety or warn guests of known danger.” (Appellant’s brief, at 43.) Appellants observe that Sharon McMillen instructed drivers, “don’t be bumping into anybody,” but assert that she was reckless because she did not know how fast the go-karts traveled, wasn’t aware of the go-kart’s maintenance schedule, and did not follow the go-kart manufacturer’s height or age restrictions. Id. at 44-45. Appellants similarly assert that Liz McNamer was reckless because she did not know the make or model of the go-karts, did not know the go-kart manufacturer’s age or height restrictions, and did not know how fast the go-karts traveled. Id. at 45-46.

[*P88]  Appellants, however, fail to explain what any of these facts have to do with the accident. The accident did not result from unsafe go-kart operation; it occurred because Doe’s headband slipped into her eyes. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855 (1st Dist.), ¶ 43, 830 N.E.2d 1252 (observing that, although the plaintiffs “presented evidence that the handrail was deteriorating and that a 1 to 50 instructor-to-student ratio was too high to be considered safe, they presented no evidence that either of these factors played even the slightest role in causing Eric’s injury”). Appellants fail to establish a genuine issue of material fact regarding whether [**54]  the defendants intentionally failed to educate themselves about go-kart safety when they had a duty to do so, or that they intentionally failed to warn appellants about the dangers of go-karting when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). Accordingly, the record fails to demonstrate that any of the defendants acted recklessly by failing to educate themselves about safe go-kart operation or by failing to warn guests of the dangers of go-karting.

[*P89]  Appellants lastly assert that the trial court “construed evidence regarding [Doe’s] driving and supervision of her by Liz McNamer and James Porter in a light most favorable to Defendants.” (Appellant’s brief, at 48.) Appellants note that, earlier in the day before the accident, Doe drove off the track, and that “[o]ther children came partially off the track as well.” Id. at 48. McNamer went and spoke to Doe after she drove off the track, and “cautioned her and advised her to be careful.” (L. McNamer Dep. at 129.) McNamer explained that “all the children had went off” the track that day, but that she only spoke to Doe because she was Doe’s “grandparent.” Id. at 131. McNamer noted that, “[n]o one else said anything to me that anyone was driving reckless or [**55]  that [Doe] wasn’t in control.” Id. Porter testified that Doe’s driving that day was “[t]ypical for past driving and typical of the driving of all of the other children who were racing that day.” (J. Porter Dep. at 105.) Porter stated that he never told his daughter, or anyone, to slow down. Id. at 152.

[*P90]  Mrs. Ochall testified that Doe “had been asked numerous times to slow down and watch her speed. * * * She was warned by her father, by Liz.” (A. Ochall Dep. at 27.) Mrs. Ochall characterized Doe’s driving as “out of control,” because she had “gotten off the track” and “was just driving aggressively.” Id. at 45-46. Mr. Ochall stated that Doe was “driving aggressively,” by “[p]assing other cars.” (R. Ochall Dep. at 53.) However, Mrs. Ochall explained that she took no precautions for her own personal safety in light of Doe’s allegedly aggressive driving, because she “felt that [Doe’s] grandmother and father addressed the behavior with [Doe].” (A. Ochall Dep. at 48.)

[*P91]  Accordingly, construing the evidence in appellants’ favor, Porter and McNamer watched the children driving, all the children drove off the track that day, and McNamer and Porter cautioned Doe about her driving. Although Mrs. Ochall characterized Doe’s driving as aggressive, [**56]  she felt that McNamer and Porter adequately addressed Doe’s behavior by speaking to her. Appellants fail to demonstrate how Porter or McNamer engaged in conduct which was substantially greater than negligent conduct by keeping an eye on Doe and cautioning her.

[*P92]  Appellants assert that the trial court “ignored the Ochalls’ testimony that [Doe] was driving aggressively.” (Appellant’s brief, at 50.) The trial court, however, did not ignore this evidence. The court noted appellants’ contention that Doe was driving aggressively by “passing other karts and veering off the track.” (Decision & Entry at 20.) The trial court observed that Mr. Ochall admitted that “he passed other karts while driving on the track that day,” and that Doe “was not the only child to veer off the track that day, as one of [apppellants’] children also veered off the track while driving.” Id. at 21. The court concluded that there was no evidence that Doe’s “actions prior to the accident amounted to aggressive driving.” Id.

[*P93]  Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand [**57]  from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855, ¶ 43, 830 N.E.2d 1252 (1st Dist.).

[*P94]  Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall. See West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 37, 985 N.E.2d 558, quoting 2 Restatement of the Law 2d, Torts, Section 500, Comment g (1965) (noting that  [HN25] “reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man”).

[*P95]  Because appellants fail to establish any genuine issues of material fact regarding whether the defendants engaged in reckless misconduct, appellants’ second assignment of error is overruled.

VI. CONCLUSION

[*P96]  The incident at the McMillens’ go-kart track which caused Mrs. Ochall’s injury was, unquestionably, a terrible and tragic accident. However, every tragic accident does not result in tort liability. Because Mrs. Ochall [**58]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

Judgment affirmed.

SADLER, J., concurs.

DORRIAN, P.J., concurs in and part dissents in part.

CONCUR BY: DORRIAN (In Part)

DISSENT BY: DORRIAN (In Part)

DISSENT

DORRIAN, P.J., concurring in part and dissenting in part

[*P97]  I respectfully concur in part and dissent in part.

[*P98]  I concur with the majority that primary assumption of the risk requires an examination of the recreational activity or sport itself. For this reason, and pursuant to Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 10, 802 N.E.2d 1116, I also agree with the majority that spectators and participants are to be treated the same and appellants’ arguments regarding the “risks to spectators” improperly attempt to shift the focus of the analysis away from the risks inherent in the activity. (Lead opinion at ¶ 48.) Consistent with [**59]  this, I concur with the majority and am not persuaded by the Third District Court of Appeals’ decision in Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002).

[*P99]  I concur with the majority that the trial court erred when it conflated the duty analysis under primary assumption of the risk with the social host duty of care under premises liability.

[*P100]  I concur with the majority that the trial court did not err when it observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part[‘] of the activity.” (Emphasis added.) (July 31, 2015 Decision at 4, quoting Gentry at ¶ 10.) (Lead opinion at ¶ 43.) However, I would find further, notwithstanding the trial court’s correct legal statement, that the trial court erred by concluding that “foreseeable risks are inherent risks of recreational activities” and in not conducting the additional analysis of whether the risk is ordinary or customary to the game. (July 31, 2015 Decision at 7.) Given this court’s three part test in Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255 (10th Dist.), which requires that in order to be considered inherent, a risk be both ordinary and foreseeable, I would interpret the term “customary” [**60]  in this context as “ordinary.” To interpret “customary” as “common” or “foreseeable” would merge the doctrines of primary and implied assumption of the risk.

[*P101]  I concur with the majority that the Supreme Court of Ohio has held that “‘[t]o be covered under the * * * doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Knoesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). (Lead opinion at ¶ 45.) I would note further that contrary to appellees’ suggestion that courts do not typically conduct a detailed analysis of whether a risk cannot be eliminated, a survey of Tenth District case law reveals that this court adheres to this requirement. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of risk is appropriate.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997) (finding the plaintiff’s “injuries occurred as a result of a commonly known danger ordinary to the sport of thoroughbred horse racing”). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 13, 15, 25 (noting that, “by its very nature, karate, as a martial art, is an inherently dangerous activity from which [**61]  the risk of harm cannot be eliminated”); Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 35, 924 N.E.2d 906 (10th Dist.) (noting that in cheerleading, “the risk [of injury] is forever present and may only be reduced to manageable levels. Manageable risks are nevertheless risks. It necessarily follows that the risk of injury is incapable of being completely eliminated”); Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 16 (affirming the trial court’s finding “that hiking is a recreational activity to which the doctrine [of primary assumption of the risk] applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night”); Main v. Gym X-Treme, 10th Dist. No. 11AP-643, 2012-Ohio-1315, ¶ 9, 12-13 (noting “[t]he rationale behind the doctrine [of primary assumption of the risk] is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable,” and finding that “tripping, slipping, and falling are all normal inherent risks” with “‘play time and gymnastic activities'”); Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 30, 49 (10th Dist.) (noting that “[i]f that activity is one that is inherently dangerous and from which the risks cannot be eliminated, a finding of primary assumption of the risk is appropriate” and finding that “[i]njury resulting [**62]  from colliding with another player on the field of play, even accidentally, is an ordinary danger of the sport of football”).

[*P102]  I concur with the majority that to determine the risks that are so inherent in an activity that they cannot be eliminated, a court must “‘focus[] exclusively upon the activity itself.'” (Lead opinion at ¶ 45, quoting Schnetz at ¶ 28.) I would clarify further that the contention that a risk must be one that is so inherent to the sport or activity that it cannot be eliminated is appropriately considered in the context of the ordinary or customary analysis. I would also suggest that in determining the same, a court should consider the goal of the primary assumption of the risk doctrine as discussed by the majority: “‘to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.'” (Lead opinion at ¶ 38, quoting Marchetti v. Kalish, 53 Ohio St.3d 95, 99, 559 N.E.2d 699 (1990), and Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248, 253, 38 Cal. Rptr. 2d 65 (3d Dist.1995) (observing that the “overriding consideration in the application of primary assumption of the risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 28 Cal.App.4th 558, 565, 33 Cal. Rptr. 2d 777 (5th Dist.1994) (noting that “[d]uty is constricted [**63]  in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).)

[*P103]  Finally, I concur with the majority’s ultimate conclusion that the trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. I dissent, however, with the majority’s consideration and determination, in the first instance, of the same.

[*P104]  Because the Supreme Court in Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996), instructs that courts must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery and because of the great impact a ruling in favor of a defendant would have, I would not determine the issue in the first instance on appeal. Rather, I would remand this case to the trial court with instructions to consider whether the risk of a go-kart veering off the track and striking objects/persons in its path meets the criteria that “(1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” (Emphasis added.) Santho at ¶ 12. In considering whether [**64]  such risk is ordinary to the game, I would instruct the court to (1) focus on the activity of go-karting itself; and (2) consider whether such risk can be eliminated without inhibiting vigorous and free participation, fundamentally changing or destroying the activity of go-karting. Such consideration necessarily involves an examination of the nature of the activity, the purpose or goals of the activity, and the rules or customs of the activity, where applicable.

[*P105]  Finally, I dissent from the majority’s consideration of the second assignment of error. Because I would reverse and remand this case for the trial court to determine, in the first instance, whether primary assumption of the risk applies, I would find to be moot the second assignment of error regarding whether the trial court erred in holding appellees did not act recklessly.2

2 I would note that appellants’ argument, pursuant to Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999), that primary assumption of the risk cannot apply because appellees “enhanced” the risk by defective design or operation, would be appropriately addressed when considering whether the exception of recklessness or willfull or wanton conduct applies to application of primary assumption of the risk.