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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,

 

 

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act,

 


Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Ana Maria Andia, M.D., Plaintiff, vs. Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures, a Hawaiian business of unknown structure, Defendants.

CASE NO. 06cv0437 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 88247

November 29, 2007, Decided

November 29, 2007, Filed

CORE TERMS: hike, lava, station, terrain, falling, rock, summary judgment, hiking, slipping, uneven, duty of care, assumption of risk, cruise, inherent risk, trail, ship, warn, surface, viewing, passenger, excursion, admits, hiker, duty to warn, failure to warn, negating, minutes, causes of action, totally outside, gross negligence

COUNSEL: [*1] For Ana Maria Andia, an individual, Plaintiff: Harold M Hewell, LEAD ATTORNEY, Hewell Law Firm APC, San Diego, CA; Howard M Rubinstein, LEAD ATTORNEY, Law Offices of Howard Rubinstein, Aspen, CO.

For Celebrity Cruises Inc, a foreign corporation, Arnotts Lodge and Hike Adventures, a Hawaiian business of unknown structure Defendants: Gregory Dean Hagen, Tammara N Tukloff, LEAD ATTORNEYS, Drath Clifford Murphy and Hagen, San Diego, CA.

JUDGES: WILLIAM Q. HAYES, United States District Judge.

OPINION BY: WILLIAM Q. HAYES

OPINION

ORDER

HAYES, Judge:

The matter before the Court is Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures. (Doc. # 40).

Background

Defendant Celebrity Cruises, Inc. (“Celebrity”) is engaged in the business of providing passenger cruises to various destinations. 1 UMF 1. Arnott’s Lodge and Hike Adventures (“Arnott’s”) guides transport cruise ship passengers to Volcanoes National Park (“the Park”), and provide knowledge about where the lava flow is each day. UMF 3. In order to view the active lava flow, individuals must hike over cooled lava. This terrain is rugged and natural, consisting of uneven surfaces. Id. at 4; DMF 4. The Hawaii Volcanoes [*2] National Park Rangers (“Rangers”) place reflective markers and cones on the lava to be used by hikers as reference points. UMF 7.

1 The parties each submitted a statement of facts with their submissions in support of and in opposition to the Motion for Summary Judgment. The Court relies upon the facts from Defendants’ Alleged Undisputed Material Facts (“UMF”), which are undisputed by Plaintiff and supported by the cited evidence, and the facts from Plaintiff s Disputed Material Facts (“DMF”), which are undisputed by Defendants and supported by the cited evidence.

In November, 2005, Plaintiff Ana Maria Andia, M.D. was a passenger on Defendant Celebrity Cruises, Inc.’s (“Celebrity”) passenger cruise ship. Plaintiff is an experienced hiker. Andia Depo, 35: 23-25. On November 27, 2005, Plaintiff signed up to participate in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike, guided by Arnott’s. UMF 8. On November 27, 2005, there was total visibility for many miles in every direction. Id. at 5.

Prior to beginning the hike, Plaintiff read the description of the hike that states: “This tour involves approximately two to six miles of hiking over very sharp and uneven surfaces.” [*3] Id. at 10. Plaintiff also read, understood and executed the “Lava Hike Participant, Release and Acknowledgment of Risk” (“Agreement”), which provides, in relevant part:

I agree not to hold Arnott’s liable for any accident or injury beyond its control. The hike to the Lava is conducted at a brisk pace and requires physically fit participants in good health who can readily hike on varied surfaces and elevation changes for extended periods. I, as a participant, acknowledge that I am taking this activity of my own free will and that I will not hold Arnott’s responsible for any injury incurred while . . . I am hiking on the paved or natural surfaces of the National Park. . . . I understand by reading this waiver that Arnott’s guides will provide only broad direction and safety guidelines and that I remain responsible for the actual path hiked and whether I choose to take the risks with possibly still hot Lava Flows.

Id. at 11. Plaintiff also received and read a document entitled “Arnotts Adventures proudly presents: The Kilauea Lava Hike Adventure” (“Brochure”), which informed Plaintiff that she may need to turn around and head back to the Rangers station alone, and that she did not need [*4] a trail to return safely. Id. at 14.

Prior to beginning the hike, Arnott’s informed Plaintiff that the lava flow had changed and that the hike was going to be longer than anticipated for that day. Id. at 13. Arnott’s also informed all participants in the hike, including Plaintiff, that they had the option of staying at the Rangers station and not going on the hike, and that there would be four decision points during the hike at which hikers could turn around and head back to the Rangers station. Id. at 13, 18.

Prior to beginning the hike, Plaintiff understood that the marked trail was merely a preferred route, and that the trail was not necessary to safely return to the Rangers station. UMF 15; Andia Depo, 63:1-15. Plaintiff also understood that guides would not stay with her during the hike and that she might be returning to the Rangers station unaccompanied. UMF 15, 16; Andia Depo, 63: 1-15, 64:22-24. Plaintiff understood that the hike would be difficult and strenuous. Andia Depo, 52: 17-19

For the first 30 minutes of the hike, and through the first two decision points, the hike proceeded on paved surfaces. UMF 20. During this period, Plaintiff recalls seeing reflective tabs on the [*5] paved surface. Id. Plaintiff’s companion recalls seeing reflective tabs stuck to the rocks for 10-15 minutes of the hike after leaving the paved road. Plaintiff does not recall whether or not the reflective tabs were stuck to the rocks. Id. at 21. Approximately 45 minutes into the hike, and after approximately 15 minutes of walking on unpaved terrain, Plaintiff decided to return, unaccompanied by a guide, to the Rangers station. Id. at 22. About 15 minutes into her return, Plaintiff slipped on one of the rocks. When Plaintiff slipped, she twisted her ankle. Plaintiff then lifted her foot up, and hit the top of her foot on the lava rock. As a result of these events, Plaintiff fractured her foot. Id. at 23. Plaintiff testified that she then proceeded back to the Rangers station. Andia Depo, 86:22-87:14. The fall itself could have caused the fracture to become displaced and surgery may have been required regardless of whether Plaintiff attempted to walk out of the lava fields. UMF 25. Plaintiff was given the option of going to the ship’s doctor or the Hilo emergency room for treatment, and Plaintiff elected to receive treatment with the ship’s doctor. Id. at 24; Andia Depo, 89:15-25; [*6] 90:1-10. Plaintiff testified that, as a result of the fracture, she was confined to a wheel chair for a period of months, had to take time off of work, and suffers impaired balance. Id. 15:13-14.

On February 24, 2006, Plaintiff filed the First Amendment Complaint (“FAC”) against Defendants Full Service Travel, 2 Celebrity and Arnott’s. (Doc. # 3). The FAC alleges causes of action against Arnott’s for (1) negligence, on grounds that Arnott’s breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Arnott’s failed to warn Plaintiff of the known dangers and risks associated with the lava hike. The FAC alleges causes of action against Celebrity for (1) negligence, on grounds that Celebrity breached its duty of care to Plaintiff by failing to to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that Celebrity failed to warn Plaintiff of the dangers and risks associated with the lava hike.

2 On October 5, 2006, Defendant Full Service Travel was dismissed from the case, with prejudice.

On August 18, 2007, Defendants filed the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. [*7] Defendants claim they are entitled to judgment as a matter of law because (1) Arnott’s owed Plaintiff no duty to protect Plaintiff against the assumed risk of slipping and falling on the lava rock, (2) Arnott’s owed Plaintiff no duty to warn Plaintiff of the obvious risk of injury of slipping and falling on the lava rock, (3) Celebrity did not owe Plaintiff a duty to warn of the obvious risk of slipping and falling on lava rock, (4) the alleged negligence of Defendants did not cause Plaintiff’s injuries, and (5) the claim for punitive damages against Arnott’s is not warranted. After receiving evidence and briefing from the parties, the Court heard oral argument on November 9, 2007.

Standard of Review

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material [*8] fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

Choice of Law

The Court has jurisdiction over this action through diversity of citizenship, 28 U.S.C. section 1331. Federal courts exercising diversity jurisdiction must [*9] apply the substantive law of the state in which they are located, except on matters governed by the United States Constitution or federal statutes, or on procedural issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Complaint alleges causes of action in negligence for breach of due care and for failure to warn. The elements of the tort of negligence are essentially identical under California and Hawaii law. See White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (USDC Haw. 2006); Ladd v. County of San Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309, 911 P.2d 496 (1996). Furthermore, the doctrine of primary assumption of risk is a measure of a defendant’s duty of care, and is essentially identical under both Hawaii and California law. Yoneda v. Andrew Tom, 110 Haw. 367, 379, 133 P.3d 796 (2006); Knight v. Jewett, 3 Cal. 4th 296, 314-15, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992).

Discussion

I. Plaintiff’s Claims Against Arnott’s

Arnott’s contends that the risk of slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking. Arnott’s contends that without this risk, the means of viewing this natural phenomenon would be severely limited to the general public. Arnott’s also contends that the evidence is uncontroverted that [*10] Arnott’s provided Plaintiff with written disclosures concerning the condition of the terrain, that guides would only give broad direction on the actual hike, that Plaintiff may need to turn around and head to the Rangers station alone, and that Plaintiff did not need a trail to return safely. Arnott’s contends that there is no triable issue of fact as to whether Arnott’s is liable for breach of its duty of care because the doctrine of primary assumption of risk applies, negating any duty of Arnott’s to protect Plaintiff against the inherent risk of slipping and falling while lava hiking. Arnott’s contends that Plaintiff has failed to assert facts or introduce any evidence that demonstrates that the conduct of Arnott’s was totally outside the range of ordinary activity or that the conduct of Arnott’s increased Plaintiff’s risk of slipping and falling on the lava rock. Arnott’s also contends that there is no triable issue of fact as to whether Arnott’s is liable to Plaintiff for breach of the duty of Arnott’s to warn because the risk of slipping and falling on the natural terrain was equally obvious to Plaintiff and Arnott’s.

Plaintiff responds that the conduct of Arnott’s constituted [*11] gross negligence for the following reasons: Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn Plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure Plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring Plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided Plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day [*12] of her cruise vacation. 3

3 Plaintiff does not dispute that the doctrine of primary assumption of risk applies, negating Arnott’s’ duty to prevent Plaintiff from slipping and falling on lava rock. Instead, Plaintiff relies solely on her contention that the Agreement itself is either an unenforceable exculpatory agreement or an unenforceable contract of adhesion. Defendants, however, do “not contend, nor have they even asserted, that the [Agreement] relieves them from liability for any alleged negligence, nor gross negligence.” Reply, p. 1-2.

A. Duty of Care

As a general rule, persons have a duty to use due care and avoid injury to others, and may be held liable if their careless conduct injures another person. Cal. Civ. Code § 1714. The doctrine of primary assumption of the risk is an exception to this general rule. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 315. Whether the doctrine of assumption of risk applies, thereby negating a duty of care, turns on [*13] the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Id. at 309. In reviewing the nature of the activity, the doctrine of primary assumption of risk applies where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. Id. at 315. “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.” Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995).

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity. Saville v. Sierra College, 133 Cal. App. 4th 857, 866, 36 Cal. Rptr. 3d 515 (4th Dist. 2005); Kane v. National Ski Patrol, 88 Cal. App. 4th 204, 209, 105 Cal. Rptr. 2d 600 (4th Dist. 2001). The relationship between an instructor and student is instructive [*14] on the issue of whether the Arnott’s guides engaged in reckless conduct or increased the inherent risk involved in lava hiking. Kane, for example, involved candidates for a voluntary ski patrol who participated in a skills clinic instructed by Larry Stone, a National Ski Patrol System (“NSPS”) instructor. 88 Cal. App. 4th at 207. Stone led the clinic participants to the most difficult terrain at the resort. When the participants were reluctant to proceed through a portion of the trail, which was icy and spotted with trees, rocks and stumps, Stone asked the clinic participants what they would do “if there was a skier over the side?” Id. at 208. Although both plaintiffs felt uncomfortable with continuing down the terrain, they carried on, following Stone’s direction. Id. One plaintiff ultimately caught an “edge” with his ski, causing him to fall to his death, and the other plaintiff fell and suffered a broken leg. Id. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of risk applied, negating the defendant’s duty of care. The court reasoned that “an instructor’s assessment errors – either in making the necessarily subjective [*15] judgment of skill level or the equally subjective judgment about the difficulty of the conditions – are in no way ‘outside the range of the ordinary activity involved in the sport.” Id. at 214.

Plaintiff admits that she is an experienced hiker. Andia Depo, 35:23-25. Plaintiff admits that falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain. Id. at 153:8-14. Plaintiff admits that prior to starting the hike she was aware that she would be hiking over “very sharp and uneven surfaces.” Id. at 51:8-13. Plaintiff does not introduce any evidence to refute that hiking across uneven and challenging natural terrain is an inherent risk of hiking to active lava flow, without which the general public would be substantially deprived of viewing this natural phenomenon. The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent Plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Plaintiff admits that, prior to the hike, Arnott’s provided the following written disclosures, which she understood: that the natural terrain was uneven and challenging; that [*16] during the hike she would be responsible for the path she traveled; that the guides would give only broad direction; that she may have to return to the Rangers station alone; and that the trail was merely a preferred route, and not necessary to safely get back to the Rangers station. Despite these disclosures, Plaintiff asserts that the decision to allow Plaintiff to return to the Rangers station alone and subsequent conduct on the part of the Arnott’s guides constituted gross negligence. The Court finds that the decision to allow Plaintiff to return alone and subsequent conduct on the part of Arnott’s guides at most constituted “assessment errors,” but these “subjective judgment[s] about the difficulty of the condition[s],” were “in no way so reckless as to be totally outside the range of the ordinary activity involved” in the activity of lava hiking. See Kane, 88 Cal. App. 4th at 214. Plaintiff emphasizes that Arnott’s’ conduct, such as permitting her to participate in the hike wearing sneakers instead of hiking boots, was grossly negligent. However, the Court finds that there is no evidence in the record to support Plaintiff’s conclusion that Arnott’s conduct, including permitting [*17] Plaintiff to wear improper footwear, hike over thin lava crust, return to the Rangers station alone and without sufficient water, or return to the ship instead of going to the Hilo emergency room, increased the risk of Plaintiff’s injury. The Court concludes that there is no triable issue of fact as to whether Arnott’s conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of lava hiking.

The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for breach of duty of care.

B. Duty to Warn

“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Marshall v. United Airlines, 35 Cal. App. 3d 84, 90, 110 Cal. Rptr. 416 (1973).

Plaintiff admits she is an experienced hiker, that she was aware that falling is always a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover during the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the possibility that Plaintiff would [*18] have to return to the Rangers station alone and nature of the terrain. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer any evidence to demonstrate that the risk of slipping and falling on lava rock was any less obvious to Plaintiff than it was to Arnott’s. The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for failure to warn.

II. Plaintiff’s Claims Against Celebrity

Celebrity contends that although Plaintiff alleges separate causes of action in negligence for breach of due care and for failure to warn, both of these claims allege only failure to warn. Celebrity contends that it had no duty to warn Plaintiff of the risk of slipping and falling on lava rock during a hike through a lava field because the risk was patently obvious and equally apparent to Plaintiff and Celebrity.

Plaintiff’s Response in Opposition to the Motion for Summary Judgment on all of Plaintiff’s claims against Celebrity states in full:

[P]laintiff relied on Celebrity to provide her with reasonably safe shore excursions. The dangers of the lava hike with Arnott’s were not readily apparent to her or anyone else who had not [*19] taken the hike. Celebrity’s reliance on Deroche is misplaced.

This was not a scooter ride, which a reasonable person knows poses obvious dangers. It was a hike to a uniquely dangerous place. [Plaintiff] reasonably relied on Celebrity to exercise due care in providing her with a safe guide service, and in offering a potentially life-threatening venture. Celebrity had a duty to ensure that Arnott’ s was a reasonable safe and reliable service. Celebrity is liable for breach of that duty.

Opposition, p. 19-20.

A. Duty of Care

The duty of care of the owner of an excursion ship is a matter of federal maritime law. DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. App. 4th 802, 807, 46 Cal. Rptr. 2d 468 (1994). “That duty is to exercise reasonable care under the circumstances.” Id. at 807-8.

Plaintiff fails to introduce any evidence to support her claim that Celebrity did not exercise due care when it enrolled Plaintiff in “excursion HL 15, the Kilauea Lava Viewing Hike, an unreasonably dangerous and poorly run and operated excursion.” See FAC, P 35-36. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed introduce any evidence demonstrating Celebrity breached its duty [*20] of due care to Plaintiff. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for breach of duty of care.

B. Duty to Warn

“[I]t is generally accepted that where a carrier . . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” DeRoche, 31 Cal. App. 4th at 809. However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.” Id. at 810.

As previously discussed, Plaintiff admits she is an experienced hiker, that she was aware that falling is a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover for the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the challenging nature of the terrain and the possibility that Plaintiff would have to return to the Rangers station alone. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed offer any evidence that demonstrates the risk of falling [*21] on lava rock was any less obvious to her than it was to Celebrity. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for failure to warn.

Conclusion

Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures (Doc. # 40) is GRANTED. The Court directs the Clerk of the Court to enter JUDGMENT for Defendants and against Plaintiff.

DATED: November 29, 2007

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge


Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

Sara Hohe, a Minor, etc., Plaintiff and Appellant, v. San Diego Unified School District, Defendant and Respondent; Mission Bay High School Parent, Teacher and Student Association, Defendant and Appellant.

Docket No. D010796.

Court of Appeal of California, Fourth District, Division One.

November 8, 1990.

Appeal from Superior Court of San Diego County, No. 598500,

Kevin W. Midlam, Judge.

Page 1560

[Editors’ Note: This Page Contained Headnotes And Headnotes Are Not An Official Product Of The Court, Therefore They Are Not Displayed.]

Page 1561

[Editors’ Note: This Page Contained Headnotes And Headnotes Are Not An Official Product Of The Court, Therefore They Are Not Displayed.]

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Counsel

Robert P. Irwin for Plaintiff and Appellant.

Lewis, D’Amato, Brisbois & Bisgaard, Peter L. Garchie and Philip

A. Book for Defendant and Appellant.

McInnis, Fitzgerald, Rees, Sharkey & McIntyre and Steven J.

Cologne for Defendant and Respondent.

Opinion

Lim, J.[fn*]

[fn*] Assigned by the Chairperson of the Judicial Council.

Plaintiff Sara Hohe (Hohe), a minor, by her guardian ad litem, Steven Hohe, appeals after the court granted summary judgment in favor of defendants San Diego Unified School District (School District) and Mission Bay High School Parent, Teacher and Student Association (PTSA). The court found the releases signed by Hohe and Steven Hohe on his daughter’s behalf barred her personal injury lawsuit. Hohe contends the court erred because the releases are contrary to public policy, unenforceable because of her minority and unenforceable because of fraud in the inducement. She also argues the written release did not clearly notify her or her parent of its effect. We conclude a triable issue of fact exists regarding the releases’ scope and effect. We therefore reverse the judgment. Accordingly, PTSA is not entitled to attorney fees or costs.

FACTS

Hohe, a 15-year-old junior at Mission Bay High School in San Diego, was injured during a campus hypnotism show sponsored by the PTSA as a fund-raiser

Page 1563

for the senior class. Hypnotism shows had been held annually since 1980.

Hohe was one of 18 or 20 subjects selected at random from a group of many volunteers. Her participation in the “Magic of the Mind Show” was conditioned on signing two release forms. Hohe’s father signed a form entitled “Mission Bay High School PTSA Presents Dr. Karl Santo.”[fn1] Hohe and her father both signed a form entitled “KARL SANTO HYPNOTIST.”[fn2]

Hohe saw the prior year’s hypnotism show. She explained to her father that it would be fun, the show was popular and discussed at least one previous stunt where a subject was suspended between two objects while another person stood on the subject’s stomach.

She also said people sang.

During the course of the show, Hohe slid from her chair and also fell to the floor about six times.

DISCUSSION

I

(1) Hohe argues the releases she and her father signed are contrary to public policy. We disagree. “[N]o public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party. . . .” (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 101 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]; Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250 Cal.Rptr. 299] ; see Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 343 [214 Cal.Rptr. 194] [parachuting]; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 612 [246 Cal.Rptr. 310] [dirt biking].)

Page 1564

An attempted but invalid exemption from liability “involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Tunkl v. Regents of University of California, supra, 60 Cal.2d at pp. 98-100, fns. omitted.)

The circumstances here present an entirely different situation.

Hohe volunteered to be part of a PTSA activity because it would be “fun.” There was no essential service or good being withheld by PTSA. Hohe, like thousands of children participating in recreational activities sponsored by groups of volunteers and parents, was asked to give up her right to sue. The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities.

Those options are steadily decreasing — victims of decreasing financial and tax support for other than the bare essentials of an education. Every learning experience involves risk. In this instance Hohe agreed to shoulder the risk. No public policy forbids the shifting of that burden.

II

(2) Hohe also argues the release from liability cannot be enforced against her because she is a minor. The permission and waiver forms were signed on her behalf by her parent. Hohe also signed one of the release documents.

It is true, with certain limited exceptions, a minor can disaffirm his or her contract. Civil Code section 35 Civ. provides, in relevant part, “the contract of a minor may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards. . . .” (Doyle v. Giuliucci (1965) 62 Cal.2d 606,

609 [43 Cal.Rptr. 697, 401 P.2d 1].) The purpose of Civil Code section 35 Civ. is to protect the minor from his own improvidence. It is often said, “he who affirmatively deals with a minor, does so at his peril.” (Holland v. Universal Underwriters Ins. Co. (1969) 270 Cal.App.2d 417, 422 [75 Cal.Rptr. 669].) However, the releases signed here were signed on

Page 1565

Hohe’s behalf by her parent. A parent may contract on behalf of his or her children. Civil Code section 35 Civ. was not intended to affect contracts entered into by adults on behalf of their children. (Doyle v. Giuliucci, supra, 62 Cal.2d at p. 609.)

The court in Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 517 [105 Cal.Rptr. 904], found a release signed by a nine-year-old invalid because, among other reasons, the minor’s signature was the only signature on the release. We therefore hold Hohe cannot disaffirm the release based on her minority.

III

(3a) Hohe also attacks the release based on fraud because the permission form bore the heading “Mission Bay High School PTSA Presents Dr. Karl Santo.” It was undisputed the hypnotist was not a medical doctor. Hohe and her father signed a second release form which was simply captioned “KARL SANTO HYPNOTIST.” The question facing the court was whether a material and triable factual issue existed based on the alleged fraudulent content of the release. We think not.

A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact. (Code Civ. Proc., § 437c Civ. Proc., subd. (c); Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 804 [270 Cal.Rptr. 585].) (4) The necessary elements of fraud are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., induce reliance; (4) justifiable reliance; and (5) resulting damage. (Seeger v. Odell (1941) 18 Cal.2d 409, 414 [115 P.2d 977, 136 A.L.R. 1291]; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1108 [252 Cal.Rptr. 122, 762 P.2d 46].)

(3b) The record before us does not disclose evidence which creates a triable and material issue of fact. Use of the title “Dr.” did not falsely represent the hypnotist as a medical doctor or show PTSA intended such a representation. There is also no evidence PTSA intended to induce reliance or Hohe justifiably relied in any way. Hohe has not presented a triable issue of fact on the question of fraud to defeat the summary judgment.

IV

(5a) The more troublesome issue before us is the scope and effect of the release forms. (6a) Hohe contends the executed forms do not clearly and unequivocally release School District and PTSA from liability for negligence.

“[T]o be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party’s own

Page 1566

negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.”

(Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318 [195 Cal.Rptr. 90]; Madison v. Superior Court, supra, 203 Cal.App.3d at p. 598; Celli v. Sports Car Club of America, Inc., supra, 29 Cal.App.3d at pp. 518-519.)

(5b) The permission form signed by Steven Hohe “waive[d] all liability against PTSA, its members, Mission Bay High School, and the San Diego Unified School District.” The form began with precautionary language stating children with mental disorders or of a nervous disposition were not allowed to participate. The parent was advised to exercise parental discretion because the anticipated program might contain an adult theme. The additional form signed by both Hohe and her father stated “I agree to indemnify and hold you and any third parties harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show. . . .” This second document signed at the same time as the permission form granted Karl Santo the authority to broadcast and record Hohe’s performance and to use her name and likeness for promotional purposes. It also specifically indemnified Santo from any liability due to Hohe’s utterances while participating in the show.

(6b) A valid release must be simple enough for a layperson to understand and additionally give notice of its import. A drafter of such a release faces two difficult choices. His Scylla is the sin of oversimplification and his Charybdis a whirlpool of convoluted language which purports to give notice of everything but as a practical matter buries its message in minutiae.

In Celli v. Sports Car Club of America, Inc., supra,

29 Cal.App.3d at page 525, appendix, a release printed on the back of a race car pit pass in six point type attempted to “[release, remise and forever discharge] from any and every claim, demand, action or right of action whatsoever kind or nature, in law or in equity, arising from or by reason of any injury to or death of any person, . . . resulting or alleged to result from or arise out of any accident or other occurrence during or in connection with the foregoing event and/or any practice session in connection therewith, and/or any use of the course and/or facilities provided for such event.” The Celli court found the release invalid.

In Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at page 319, a release consisting of a convoluted 147-word

Page 1567

sentence contained no releasing words such as “‘release,’ ‘remise,’ ‘discharge,’ ‘waive’ or the like.” The Ferrell court found the release invalid.

(5c) The question here is whether the release and waiver language in the documents signed by Hohe and her father exculpates PTSA and School District from the consequences of its own breach of duty.

A line of cases exists suggesting a release to be effective against “active” negligence must specifically refer to “negligence” in the language of the contract. In other words, a general release will not protect a party from liability unless the negligent acts are ones of nonfeasance or “passive” negligence. (Vinnell Co. v. Pacific Elec. Ry. Co. (1959) 52 Cal.2d 411, 415 [340 P.2d 604]; Markley v. Beagle (1967) 66 Cal.2d 951, 962 [59 Cal.Rptr. 809, 429 P.2d 129]; MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal.App.3d 413, 422 [105 Cal.Rptr. 725].)

However, an analysis based on the “active-passive dichotomy” or on the absence or presence of a specific reference to “negligence” is not dispositive. (See Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 632 [119 Cal.Rptr. 449, 532 P.2d 97].) (7) “[I]t is manifest that it is the intent of the parties which the court seeks to ascertain and make effective. Where . . . the circumstances of the claimed wrongful conduct dictate that damages resulting therefrom were intended to be dealt with in the agreement, there is no room for construction of the agreement. It speaks for itself.” (Harvey Mach. Co. v. Hatzel & Buehler, Inc. (1960) 54 Cal.2d 445, 449 [6 Cal.Rptr. 284, 353 P.2d 924] distinguishing Vinnell Co. v. Pacific Elec. Ry. Co., supra, at p. 415.) Whether a release bars recovery against a negligent party “turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.” (Rossmoor Sanitation, Inc. v. Pylon, Inc., supra, 13 Cal.3d at p. 633.)

(5d) The permission form signed by Hohe’s father and the additional indemnification and “hold harmless” form signed by both Hohe and her father are general releases. There is no language which specifically speaks to a release from liability for negligence. Nor is there any language which specifically alerts the parent his child is barred from a recovery based on her bodily injury. It is true, “[t]o require that an express indemnity clause be cast in (a) rote form . . . is to compel contracting parties to lie upon a [P]rocrustean bed of linguistic formalism that inhibits the clear meaning of plain English.”

(C.I. Engineers & Constructors, Inc. v. Johnson & Turner Painting Co. (1983) 140 Cal.App.3d 1011, 1018 [189 Cal.Rptr. 824] .) Our analysis is not based on the mechanical application of some formula. The presence or absence of the words “negligence” or “bodily injury” is not dispositive. We look instead to the intention of the parties as it appears in

Page 1568

the release forms before the court. In this instance, the intention as expressed in the releases signed by the parent for his child is not clear. Although the parent waived all liability it was in the context of two documents which focused on mental and nervous disorders, defamation and broadcast rights. The scope of the waiver is ambiguous. Where the intention of the parties on the face of the releases is ambiguous, a triable factual issue is presented. (8) Any doubts as to the propriety of granting the motion for summary judgment should be resolved in favor of the party opposing the motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; Slivinsky v. Watkins-Johnson Co., supra, 221 Cal.App.3d at p. 804.) We are mindful of the salutary purposes sometimes served by releases in diminishing the risk of litigation to groups and entities sponsoring student and recreational activities. However we cannot say the release documents signed by Hohe and her parent bar recovery for her personal injuries as a matter of law. Accordingly, we must reverse the summary judgment.

V

Finally, Hohe contends hypnotism is an ultrahazardous activity.

It is unnecessary to reach this issue in deciding whether or not the court properly granted summary judgment. We decline Hohe’s invitation to direct the court on how it should receive evidence on that issue.

VI

We similarly need not decide whether or not the attorney fees provision found in the release forms would entitle PTSA to attorney fees. The court denied PTSA its attorney fees and costs on its motion for summary judgment. Since we have decided the court erred in granting judgment to PTSA, it follows PTSA is not entitled to attorney fees or costs.

DISPOSITION

The judgment is reversed. The order denying attorney fees and costs is affirmed. All parties to bear their own costs on appeal.

Huffman, Acting P.J., concurred.

[fn1] The release form read as follows: “CAUTION [¶] Children with any mental disorder or of a nervous disposition are not allowed to participate. A portion of the program occasionally contains adult theme; parental discretion is advised.

“SUBJECTS ARE REQUIRED TO ARRIVE AT 6:30 p.m.

“My son/daughter Sarah Hohe, grade 11 has my permission to be hypnotized by Dr. Karl Santo during his program at Mission Bay High School. I waive all liability against the PTSA, its members, Mission Bay High School, and the San Diego Unified School District.”

[fn2] The form read in part: “I agree to indemnify and hold you and any third parties harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show including any utterances made by me during the above named show or material furnished by me in connection with my participation in the show. I am solely responsible for my appearance in the show and for any loss to any party arising therefrom. [¶] I acknowledge that I am not receiving any compensation from my participation or the above authorization; and that you are relying on the above understandings in your use and broadcasting of my participation and in the production and promotion of the Magic of the Mind Show.”

NARES, J., Dissenting.

Although I agree completely with sections I through III of the majority opinion, I dissent from the conclusion[fn1] reached Page 1569 in section IV. The release signed here clearly, plainly, and unambiguously informs a signer it is a release of “all liability, loss or damage . . . caused by or arising in any manner from my participation in the Magic of the Mind Show.”

(Italics added.) In all fairness, it is difficult to imagine what more any drafter could do to advise a layperson the release covers all types of liability than to say so.

Of course, I acknowledge the series of cases stating the word “negligence” must be used if negligence is to be released. (See, e.g., Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 319 [195 Cal.Rptr. 90].)

However, as the majority correctly notes, the validity of a release should not turn on “magic” words. Instead, the issue is whether a layperson such as Hohe understood, from whatever language used, that she was releasing persons from negligence liability.

With this in mind, I turn (as does the majority) to the question of the parties’ intention when these release forms were signed. In resolving this question, the following facts are undisputed: (1) Sara had seen the hypnotism show before; (2) part of the show involved hypnotized persons falling down; (3) Sara solicited the opportunity to be hypnotized; and (4) prior to the show she (and her father) released the hypnotist and any third parties “from any and all liability.” (Italics added.)

I am unable to discern, as does the majority, the existence of any ambiguity in the phrase “any and all liability.”[fn2] Sara had seen the show, was aware that participants would fall down, and elected to be among them. She now seeks compensation for injuries allegedly incurred when she fell down. The alleged harm is precisely that for which she released all others from liability. (Cf. Madison v. Superior Court (1988) 203 Cal.App.3d 589 [250 Cal.Rptr. 299]; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606 [246 Cal.Rptr. 310]; Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 [236 Cal.Rptr. 181]; Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 [214 Cal.Rptr. 194] .) Based upon the foregoing, I would hold the release effective and affirm the judgment.

[fn1] I agree with the majority’s statements in section IV regarding the social value of releases and the difficulties which face the successful drafter of a release.

[fn2] The release, quoted in footnote 2 of the majority opinion, ante, page 1563, is not written in legalese or insurance company double-talk.

Page 1570

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Saffro v. Elite Racing, Inc., 98 Cal. App. 4th 173; 119 Cal. Rptr. 2d 497; 2002 Cal. App. LEXIS 4076; 2002 Cal. Daily Op. Service 3941; 2002 Daily Journal DAR 5009

Richard Saffro, Plaintiff and Appellant, v. Elite Racing, Inc., Defendant and Respondent.

No. D037591.

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE

98 Cal. App. 4th 173; 119 Cal. Rptr. 2d 497; 2002 Cal. App. LEXIS 4076; 2002 Cal. Daily Op. Service 3941; 2002 Daily Journal DAR 5009

May 7, 2002, Decided

NOTICE: [***1] CERTIFIED FOR PUBLICATION

SUBSEQUENT HISTORY: Rehearing Denied May 31, 2002.

Review Denied July 31, 2002, Reported at: 2002 Cal. LEXIS 5268.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of San Diego County. Super. Ct. No. 731713. Linda B. Quinn, Judge.

DISPOSITION: Reversed.

SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY A marathon runner brought an action for negligence and negligent supervision against the organizers of a particular 26-mile race. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte replacement drinks during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner who testified that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendants wrote a letter to participants, in which they admitted that their provision of “race fundamentals” had been inadequate. The trial court granted defendant’s summary judgment on the ground that plaintiff’s action was barred by the doctrine of primary assumption of the risk. (Superior Court of San Diego County, No. 731713, Linda B. Quinn, Judge.)

A marathon runner brought an action for negligence and negligent supervision against the organizers of a particular 26-mile race. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte replacement drinks during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner who testified that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendants wrote a letter to participants, in which they admitted that their provision of “race fundamentals” had been inadequate. The trial court granted defendant’s summary judgment on the ground that plaintiff’s action was barred by the doctrine of primary assumption of the risk. (Superior Court of San Diego County, No. 731713, Linda B. Quinn, Judge.)

The Court of Appeal reversed. The court held that plaintiff’s action was not barred by the doctrine of primary assumption of the risk. The organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to minimize the risks without altering the nature of the sport, including the provision of sufficient water and electrolyte replacement drinks. The court further held that the circumstantial evidence presented by plaintiff created an issue of fact regarding causation. (Opinion by McIntyre, Acting P. J., with O’Rourke and McConnell, JJ., concurring.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1)Negligence § 122–Actions–Appeal–Scope of Review–Questions of Law–Assumption of Risk. –The issue of assumption of risk involves the existence and scope of a defendant’s duty of care, which is a legal question that depends on the nature of the activity involved and the parties’ relationship to that activity. An appellate court reviews de novo a trial court’s determination on the issue of assumption of risk, and all doubts as to the propriety of granting a motion for summary judgment must be resolved in favor of the party opposing the motion.

(2)Negligence § 37–Exercise of Care by Plaintiff–Primary and Secondary Assumption of Risk. –The doctrine of assumption of risk in negligence cases embodies two components: (1) primary assumption of risk–where the defendant owes no duty to the plaintiff to protect him or her from the particular risk, and (2) secondary assumption of risk–where the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters a risk created by the breach of that duty. Primary assumption of risk operates as a complete bar to a plaintiff’s negligence cause of action, while the doctrine of secondary assumption of risks is part of the comparative fault scheme, where the trier of fact considers the relative responsibility of the parties in apportioning the loss.

(3)Negligence § 37–Exercise of Care by Plaintiff–Primary Assumption of Risk–Sports Activities–Legal Duty of Defendant–Role in Sport. –Before concluding that a sports-related negligence case comes within the doctrine of primary assumption of risk, a court must not only examine the nature of the sport, but also the defendant’s role in, or relationship to, the sport. The scope of the legal duty owed by the defendant will frequently depend on this role or relationship. The risks inherent in the sport are defined not only by the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.

(4a)(4b)Negligence § 37.2–Exercise of Care by Plaintiff–Primary Assumption of Risk–Sports Activities–Legal Duty of Organizer of Marathon Race–Provision of Fluids to Runners. –The trial court erred in finding that an action for negligence and negligent supervision brought against the organizers of a particular 26-mile race by a marathon runner was barred by the doctrine of primary assumption of risk. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendant wrote a letter to participants, in which it admitted that its provision of “race fundamentals” had been inadequate. The organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to minimize the risks without altering the nature of the sport. Further, the circumstantial evidence presented by plaintiff created an issue of fact regarding causation.

[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090C.]

(5)Negligence § 72–Actions–Burden of Proof–Proximate Causation–Shifting Burden to Defendant–When Negligence Renders Plaintiff Incapable of Proving Causation. –When there is a substantial probability that a defendant’s negligence was a cause of an injury and when this negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant to prove its negligence was not a cause of the injury. In these circumstances, as a matter of public policy, the burden is more appropriately borne by the party with greater access to information.

COUNSEL: Higgs, Fletcher & Mack and John Morris for Plaintiff and Appellant.

Royce, Grimm, Vranjes, McCormick & Graham and A. Carl Yaeckel for Defendant and Respondent.

JUDGES: Opinion by McIntyre, Acting P. J., with O’Rourke and McConnell, JJ., concurring.

OPINION BY: McINTYRE

OPINION

[*175] [**498] McINTYRE, Acting P. J.

In this case we conclude that [HN1] the organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to “minimize the risks without altering the nature of the sport”–which includes providing sufficient water and electrolyte replacement drinks as represented in the informational materials provided to the participants. (See Knight v. Jewett (1992) 3 Cal. 4th 296, 317 [11 Cal. Rptr. 2d 2, 834 P.2d 696].)

Richard Saffro appeals from [***2] a summary judgment entered against him on his complaint against Elite Racing, Inc. (Elite) for negligence and negligent [*176] supervision in connection with the 1998 “Suzuki Rock ‘N’ Roll Marathon” in San Diego. Saffro contends the judgment should be reversed because the trial court erred in (1) ruling his suit was barred by the doctrine of primary assumption of risk; (2) excluding the declarations of three race participants; and (3) denying his motion [**499] for reconsideration. We agree with Saffro’s first contention and find there are issues of material fact on the questions of breach of duty and causation. Thus, we reverse the judgment. This renders Saffro’s second and third contentions moot.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are derived from the evidence admitted by the trial court. On June 21, 1998, Saffro ran in the marathon organized and conducted by Elite. That same day, after completing the race, Saffro boarded a plane to return home to Chicago. Between 60 and 90 minutes into the flight, Saffro suffered a grand mal seizure, necessitating an emergency landing in St. Louis. He was hospitalized in St. Louis and diagnosed with severe hyponatremia–which [***3] occurs as a result of decreased sodium concentration in the blood, as well as pulmonary edema and cerebral edema resulting from the hyponatremia. Saffro’s condition was critical; he was kept on a ventilator for four days and hospitalized for a longer period. His injuries caused him to suffer neurological deficit; indeed, Saffro’s only memory of running the marathon was a “vague recollection of hearing some music, some bands . . . .” Saffro submitted the declarations of medical experts who opined that his hyponatremia was caused by the inability to consume adequate amounts of water and fluids containing electrolytes (such as Gatorade and Race Day) during the marathon.

Prior to the marathon, Elite sent written materials to the participants stating there would be 23 water and refreshment stations located throughout the course, from the 2-mile mark to the 25.1-mile mark. Elite represented that all stations would include water and 11 stations would also distribute Race Day, an electrolyte fluid. Saffro presented evidence that it is customary in the field and runners expect, on the basis of their entry fee, to be “support[ed] along the course” and provided with water and electrolyte [***4] fluids at regular intervals. In addition, he testified that in the other two marathons he had run, it was his practice to stop at every refreshment stand and drink the water and electrolyte fluids provided.

Elite also informed the runners in writing that the race would start at 7:00 a.m. and that it anticipated all runners would reach the starting line in less than five minutes. About 6:15 a.m. on the day of the marathon, Saffro drank 12 to 16 ounces of water and then was directed to his “corral” to await the [*177] scheduled 7:00 a.m. start of the race with other runners of similar ability. One thousand participants were assigned to each corral based on their projected race times, with the fastest runners stationed closest to the starting line. No one without an official marathon number was allowed to enter the corrals. The race did not start until about 7:45 a.m., however. During the delay, the cloud cover burned off and it became increasingly warm, yet the runners could not leave the corrals to get more water or other fluids. Several announcements were made during the delay that the race would begin in “only five or ten more minutes”–which was not the case.

According to [***5] Elite’s records, Saffro completed the marathon in 4 hours, 17 minutes and 32 seconds. Another runner, Kelley Magill, finished the race in approximately 4 hours and 45 minutes. Magill testified that at the first refreshment station at the 2-mile mark, “there was nothing. There were no volunteers, no cups, no water. Nothing.” At the next station, there was only a big trash can filled with water–no cups and no volunteers. Magill was hoping to get some water there, but “there were so many people crowded around [the [**500] trash can], pushing and yelling” that she kept on running. At the third refreshment station at the 4.1-mile mark–the first station at which Race Day was supposed to be available, there was a volunteer with a jug of water and some cups, but they had run out of Race Day. Water was set out in cups on tables at the 20 remaining stations, but there was no Race Day. Magill looked for and asked for Race Day at every refreshment station along the course, but was told each time that they had “run out of it.” She kept running in the race because she thought “there had to be some at the next [station].”

In a postrace letter to the participants regarding the marathon, [***6] Elite stated:

“[W]e know that in order to take our place as one of the world’s great marathons the ‘race fundamentals’–as well as the bells and whistles, must be superb.

“Despite our efforts, we know that too many aspects of the event were not perfect, and we take full responsibility for any and all of those imperfections. We promise to correct them all next year. The race will start on time . . . and you’ll be able to drown at our water stations.”

Saffro filed his original complaint against Elite for negligence and negligent supervision on June 16, 1999, and on April 3, 2000, he filed an amended complaint stating the same causes of action. Elite filed a motion for summary judgment on May 11, 2000, on the ground that Saffro’s causes of action were barred by the doctrine of primary assumption of risk. The trial [*178] court granted the motion, ruling that hyponatremia is an inherent risk of running a marathon and thus, Saffro’s claims were barred by the primary assumption of risk doctrine. The court also concluded “there is no evidence that plaintiff attempted to obtain the sport drinks or water during the race at any of the water and refreshment stations or that he was [***7] prohibited from doing so.”

DISCUSSION

(1) [HN2] The issue of assumption of risk involves the existence and scope of a defendant’s duty of care, which is a legal question that depends on the nature of the activity involved and the parties’ relationship to that activity. ( Knight v. Jewett, supra, 3 Cal. 4th at p. 313.) [HN3] We review de novo the trial court’s determination on the issue of assumption of risk, and all doubts as to the propriety of granting a motion for summary judgment must be resolved in favor of the party opposing the motion. ( Morgan v. Fuji Country USA, Inc. (1995) 34 Cal. App. 4th 127, 131 [40 Cal. Rptr. 2d 249]; see also Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal. 3d 171, 183 [203 Cal. Rptr. 626, 681 P.2d 893].)

(2) [HN4] The doctrine of assumption of risk in negligence cases embodies two components: (1) primary assumption of risk–where the defendant owes no duty to the plaintiff to protect him or her from the particular risk, and (2) secondary assumption of risk–where the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters a risk created by the breach of that duty. ( Knight v. Jewett, supra, 3 Cal. 4th at p. 308.) [***8] Primary assumption of risk operates as a complete bar to the plaintiff’s cause of action, while the doctrine of secondary assumption of risks is part of the comparative fault scheme, where the trier of fact considers the relative responsibility of the parties in apportioning the loss. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 132.)

[**501] (3) [HN5] Before concluding that a case comes within the doctrine of primary assumption of risk, a court must not only examine the nature of the sport, but also the ” ‘defendant’s role in, or relationship to, the sport.’ ” ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 133, quoting Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Indeed, the scope of the legal duty owed by the defendant will frequently depend on such role or relationship. ( Knight v. Jewett, supra, 3 Cal. 4th at pp. 317-318.) The Knight court noted that many courts, in analyzing the duty of the owner of a sports facility or ski resort, had defined “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the [***9] sponsoring business entity reasonably should be obligated to take in order to minimize the risks [*179] without altering the nature of the sport.” ( Id. at p. 317, italics added.) The court concluded “that 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.” ( Id. at p. 318.)

Following Knight, we held in Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at page 134, that despite the fact that being struck by an errant ball is an inherent risk in the sport of golf, the owner of a golf course owes a duty to golfers “to provide a reasonably safe golf course” which requires it ” ‘to minimize the risks without altering the nature of the sport. [Citations.]’ ” (Ibid., quoting Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) We noted that if the defendant were the golfer who had hit the errant ball, the plaintiff’s negligence action would be barred by the primary assumption of risk doctrine, but that the defendant owner of the golf course had an obligation to design [***10] a course that would minimize the risks that players would be hit by golf balls and affirmatively provide protection for players from being hit in the area of the course where the greatest danger existed. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134, citing Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Therefore, we concluded the case was one involving secondary assumption of risk and that the trial court erred in granting summary judgment based on the doctrine of primary assumption of risk. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at pp. 134-135.)

(4a) Similarly, here we hold [HN6] a race organizer that stages a marathon has a duty to organize and conduct a reasonably safe event, which requires it to “minimize the risks without altering the nature of the sport.” ( Knight v. Jewett, supra, 3 Cal. 4th at p. 317; Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134.) This duty includes the obligation to minimize the risks of dehydration and hyponatremia by providing adequate water and electrolyte fluids along the 26-mile course–particularly where the [***11] race organizer represents to the participants that these will be available at specific locations throughout the race. (See Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134; see also Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Such steps are reasonable and do not alter the nature of the sport. Accordingly, we hold this is a case involving secondary assumption of risk, and therefore, the trial court erred in ruling Saffro’s causes of action [**502] were barred by the doctrine of primary assumption of risk.

Moreover, we find that Saffro presented sufficient evidence to create an issue of fact as to whether Elite breached its duty to provide adequate water and fluids throughout the race. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at pp. 134-135.) Magill, who finished the race within 30 [*180] minutes of Saffro, testified there was no water at the first station, only a trash can of water at the second station, and a jug of water at the third, and that Race Day was not available at any of the 23 stations. As Magill indicated in her deposition, when she was running the marathon, she did [***12] not know Race Day would not be available at any of the stations; rather, when she found she could not get Race Day at one station, she kept thinking it had to be available at the next. Moreover, Saffro suffered a grand mal seizure within hours of the race that his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. Elite also alluded to problems in providing adequate “race fundamentals” in a letter to participants following the race, and stated “[next year] you’ll be able to drown at our water stations.”

In addition, to the extent the trial court’s statement, “there is no evidence that plaintiff attempted to obtain the sport drinks or water during the race at any of the water and refreshment stations,” suggests a failure of proof on the issue of causation, we disagree. Saffro testified that his practice in running marathons is to stop at all the refreshment stands and drink the water and electrolyte fluids provided, and there is an issue of fact as to whether Elite made these liquids adequately available to him and other runners of similar ability and speed. Saffro’s medical [***13] experts also declared his hyponatremia was caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. Moreover, it strains reason to conclude that Saffro or any runner in a major marathon would not stop or attempt to stop, at all, for water and fluids that are represented to be available throughout the course. Thus, the circumstantial evidence presented creates an issue of fact regarding causation, even though Saffro is unable to remember the details in running the race. (See KOVR-TV, Inc. v. Superior Court (1995) 31 Cal. App. 4th 1023, 1027-1028 [37 Cal. Rptr. 2d 431].)

Further, given Saffro’s resulting neurological injuries which have impaired his memory, and the evidence of inadequate provision of water and electrolyte fluids, this may be a case in which the burden of proof regarding causation would be shifted to Elite as a matter of public policy. (See Haft v. Lone Palm Hotel (1970) 3 Cal. 3d 756, 762 [91 Cal. Rptr. 745, 478 P.2d 465].) In Haft, the decedents were found dead in the bottom of a hotel pool; no one had witnessed them drown, but the hotel owners had failed to comply with several [***14] safety regulations regarding pools. ( Id. at pp. 762-763.) (5) The court held that [HN7] where there is a substantial probability that the defendant’s negligence was a cause of the injury and when such negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant [*181] to prove its negligence was not a cause of the injury, i.e., in those circumstances, the burden was more appropriately borne by the party with greater access to information. ( Id. at p. 774, fn. 19.) (4b) We do not hold that the burden should be shifted in this case, only that the circumstances of [**503] this case raise this issue, and we leave this matter for the trial court to address, depending on what, if any, additional evidence is adduced.

Accordingly, because Saffro’s causes of action are not barred by the doctrine of primary assumption of risk, and there are issues of fact on the issues of negligence and causation, the trial court erred in entering summary judgment against him.

DISPOSITION

The judgment is reversed. Costs are awarded to Saffro.

O’Rourke, J., and McConnell, [***15] J., concurred.

A petition for a rehearing was denied May 31, 2002, and respondent’s petition for review by the Supreme Court was denied July 31, 2002. Brown, J., did not participate therein.