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Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.

However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.

Quiroz et. al. v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas, Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”)

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish.

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.

However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.

Facts

The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.

The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.

The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.

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

The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.

The court did not agree, finding language in the release that stated the release applied to all “jumpstreet entities that engaged in the trampoline business.”

…it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”

The next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.

Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.

Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.

Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.

The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.

The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.

The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim for gross negligence.

The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence, and gross negligence are not separable claims and a release of liability for negligence also releases a party from liability for gross negligence.

(For other arguments like this see In Nebraska a release can defeat claims for gross negligence for health club injury.)

The court looked at the release which identified negligence and gross negligence as claims that the release would stop.

Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.

…Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

The court affirmed the trial court’s dismissal of the plaintiff’s claims.

So Now What?

First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.

In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.

Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.

Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.

What do you think? Leave a comment.

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Quiroz v. Jumpstreet8, Inc., 2018 Tex. App. LEXIS 5107

Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees

No. 05-17-00948-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2018 Tex. App. LEXIS 5107

July 9, 2018, Opinion Filed

PRIOR HISTORY: [*1] On Appeal from the 298th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 15-02671.

In re Quiroz, 2017 Tex. App. LEXIS 7423 (Tex. App. Dallas, Aug. 7, 2017)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The trampoline facility owner met its burden of establishing it was entitled to summary judgment as a matter of law because the release was enforceable when it met both the fair notice requirement for conspicuousness and the express negligence rule.

OUTCOME: Order affirmed.

CORE TERMS: summary judgment, entity, gross negligence, public policy, negligence claims, partial, matter of law, cause of action, pre-injury, consortium, waive, cross-motion, notice requirements, trampoline, bystander, specifically named, unenforceable, signing, mental anguish, signature line, conspicuousness, distinguishable, enforceable, derivative, lettering, parental, waiving, notice, void, issue of material fact

COUNSEL: For Graciela Quiroz, et al, Appellant: John T. Kirtley, Lead counsel, Ferrer, Poirot and Wansbrough, Dallas, TX.

For Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellee: Cassie Dallas, Shelby G. Hall, Wade C. Crosnoe, Lead Counsel, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX; Michael A. Yanof, Lenahan Law, P.L.L.C., Dallas, TX; Randy Alan Nelson, Thompson Coe, Dallas, TX.

JUDGES: Before Justices Myers, Boatright, and O’Neill.1 Opinion by Justice O’Neill.

1 The Hon. Michael J. O’Neill, Justice, Assigned

OPINION BY: MICHAEL J. O’NEILL

OPINION

MEMORANDUM OPINION

Opinion by Justice O’Neill

Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.

Background

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release [*2] and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted [*3] the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

Issue Presented

In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion [*4] for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.

Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.

Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release [*5] before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.

Applicable Law

[HN1] We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.–Dallas 2009, no pet.); 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). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. [*6] S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. [HN2] A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.–Dallas 2011, no pet,).

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.

Discussion

[HN3] Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written [*7] expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).

[HN4] A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of [*8] Jumpstreet.”

The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.

Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document [*9] carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).

The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of [*10] risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.

Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.–Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. [*11] Moreover, [HN5] the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799-800 (Tex. App.–Houston [14th Dist.] 1998, no pet.).

Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.–Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.2 Some appellate courts have held that negligence [*12] and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied).

2 We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.

In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).

Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the [*13] claims being waived. See Quintana, 347 S.W.3d at 450.

Conclusion

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.

We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.

/s/ Michael J. O’Neill

MICHAEL J. O’NEILL

JUSTICE, ASSIGNED

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.

Judgment entered this 9th day of July, 2018.


Whitewater rafting release upheld by the Alaska Supreme Court.

Language in the release stated the defendant would and had done their best to keep people adequate… that language almost voided the release. Don’t put in a release information that can be used against you!

Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

State: Alaska, Supreme Court of Alaska

Plaintiff: Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton

Defendant: Nova River Runners, Inc.

Plaintiff Claims: Wrongful Death and multiple theories of Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

The deceased died whitewater rafting. Alaska has a six-prong test to determine if a release is valid. Here, the plaintiff argued the release in question failed on every point.

The Alaskan Supreme Court disagreed; however, on a few of the issues, the court struggled to have this release meet the requirements needed.

Facts

The defendant operated whitewater raft trips on Six Mile Creek near Hope, Alaska. The deceased signed a release prior to going rafting. No one could remember if the deceased read both sides of the release, however, ample time was given so the release could have been read.

The release is a 2-sided document. One side is labeled Participants Acknowledgment of Risk. The other side is where the participants acknowledge they have read the release.

The raft trip consists of three canyons. After the first two canyons, the participants are given an opportunity to get off the trip because the third canyon is the hardest. The deceased did not leave the trip. Sometime in the canyon is raft capsized, and the decedent died.

The spouse of the deceased brought his lawsuit on her behalf and as the executor (personal representative) of the estate. The trial court dismissed the plaintiff’s claims after the defendant filed a motion for summary judgment based on the release signed by the deceased. The plaintiff appealed.

The decision was heard by the Alaska Supreme Court. Alaska does not have an intermediate appellate court so appeals from the trial court go to the Supreme Court.

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

Alaska has a statute, Alaska Statute 09.65.290, that protects recreational defendants from liability from the inherent risks of the activity. The court recognized the statute is weak and stated that business in Alaska must supplement their protection by using a release.

The Alaska Supreme Court decided one prior decision concerning releases Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153, See Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK. The court relied on its prior decision in Donahue to support its decision here.

In Donahue, the court created a six-part test to test the validity of a release.

…(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.

The plaintiff argued the release in this case did not satisfy the requirements set forth in Donahue.

The first argument was the release was not conspicuous and unequivocal because the release was two sided, and the sides did not appear to incorporate or be connected to each other.

The court did not agree with the argument because whether or not it was two different documents and whether or not the deceased read both sides was irrelevant because he signed the document. “We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.

The next argument was different.

The Estate also argues that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions.”

The court found that the language in the release was broad enough to cover this claim.

However, the Release covers this risk as well; it indemnifies the “Releasees” in capital letters from liability for injury or death, “whether arising from negligence of the Releasees or otherwise,” and specifically defines “Releasees” to include “employees.”

The court also found that in Donahue,

…we also observed that “[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees.”

The plaintiffs then argued that a release must use the word negligence in it. This is a requirement of many states. Here, however, the argument failed because the release did use the term negligence, several times. The plaintiff’s argued that each time the word negligence was used, it was used in a way that was different from the prior ways so the release was not clear and explicit.

Next the plaintiff’s argued the language was not clear and did not adequately define the activity. The court found this release used capital letters to highlight the clauses waiving negligence, and the negligence clause was not concealed from view.

The clause contained some legalese; however, releases should be read “as a whole” to determine whether or not the language in the release “clearly notify the prospective releasor of the effect of signing the agreement.”

The release was a general release in that it also included release language for glacier hiking and ice climbing. However, the inherent risks outlined in the release were the risks of whitewater rafting. With that risk language, the court found the reader would know they were signing a release.

Based on that language it is obvious the release would fail for ice climbing and glacier hiking?

The plaintiff’s argued the release violated public policy. However, the court outlined Alaska’s definition of public policy in relation to recreation activities.

In evaluating public policy arguments in the context of liability waivers, we have previously considered “[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature of the service.”25 The type of service likely to inspire additional scrutiny on public policy grounds is “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

A release for recreational activities does not violate public policy in Alaska.

The plaintiffs also argued the “release suggests an intent to exculpate nova from liability for employee negligence.

The court said, yes it does and that is OK. However, the court also specifically identified weaknesses in the release in this area. However, the weaknesses were not enough to void the release.

Ideally NOVA’s Release would include a more detailed description of the types of negligence it covers, such as “employee negligence” and “negligent training.” But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.

The plaintiffs also argued the defendants violated their own requirements set forth in the release. The release stated:

“…the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled.”

The court worked around this stating the language before and after this [stupid] section defined the risks of the activity, which should have shown the deceased that no matter what steps taken, there were still risks. The court stated, read as a whole, the release outlined numerous risks of whitewater rafting.

The plaintiff argued a case out of Florida, which also had numerous safety standards the defendant promised to meet and had not, should be controlling here. The court had been struggling through four paragraphs eventually concluded.

NOVA’s Release contains only a single half-sentence, to that effect, adequately disclaimed: “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.” And the release in Kerr was much broader — promising to “try to make the [premises] safe” — than NOVA’s Release, which promises merely that the company takes “reasonable steps to provide . . . appropriate equipment and/or skilled guides” while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate’s reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.

The court found the release met all the six requirements needed in Alaska to be a release and upheld the trial court’s dismissal of the plaintiff’s claims.

So Now What?

If your release, and I hope, it does, covers more than one page, make sure the pages connect or relate to each other. First, if on just one piece of paper, at the bottom of each page put in the footer, “Please Read Other Side.” If the release is more than two pages, besides the admonition to read the other side include page numbers on the document.

Write the document so it flows. You don’t have to have a heading at the top of each page. The two different headings in this case raised the argument it was two separate and unrelated documents. If the document were two different documents, then the first page should have had a signature line also, which is what the plaintiff argued. With no signature line, the first page of the document was a separate document and could not be held against the deceased.

If the writing flows, the paragraph or idea continues on the next page, then this would have been a non-issue.

Next you have to write your release to cover not only could happen but will happen, and it is all tied back to your employees. Always protect your employees and write the release broadly so it covers all the possible actions or acts an employee could take that may lead to a claim.

Never create in your release in a way for the plaintiff to sue you. Never make promises, never say you operate at a level, never say you use the best or even adequate anything. That language in this release almost was enough to defeat the release, and it was obvious the court struggled to find a very weak argument to beat this part of the plaintiff’s claims.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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Twenty Years ago, releases were void in New York, here; a release stopped a claim for an injury from a plaintiff playing flag football

New York has a statute that voids releases if used by places of amusement where you pay to enter. Issue in this case was, did the plaintiff pay to enter the field or pay the league.

By paying the league, he did not pay a place of amusement, and the release stopped his claims.

Marcf v. Middle Country Center School District, Long Island Flag Football League, Inc. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

State: New York: Supreme Court of New York, Suffolk County

Plaintiff: Murat Marcf

Defendant: Middle Country Center School District, Long Island Flag Foot-Ball League, Inc. and Long Island Flag Football, Inc.,

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: December 2017

This case is one of many showing how release law has changed over the years. New York was a state that once barred releases and now easily enforces them. If you use releases, you must stay current on the law affecting your release. You probably also need to have your release updated. Contact me if you need your release checked.

Summary

New York GOL § 5-326 states that in New York places of amusement, where the patrons pay to enter or play are void. Here the place of amusement was a football field owned by the defendant. However, the plaintiff did not pay the defendant to play on the field; he paid the flag football league so the release he signed was valid and stopped his claims.

Facts

The plaintiff was injured playing flag football. His flag football game was part of a league. The plaintiff paid the league to play, and the league organized games and places to play.

The plaintiff jumped to receive a pass and landed on a concealed sprinkler head inuring is foot. He sued to recover for his injuries. The field he was playing on was owned by the defendant school district.

Before playing the plaintiff signed a release. The defendants filed a motion to dismiss the plaintiff claims based upon the release. The following is the court’s analysis and dismissal of the plaintiff’s complaint.

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

The court thoroughly went through release law in New York. The court referred to the release as documentary evidence that must resolve all factual issues if the motion was to be granted.

For the release to be valid, the terms of the release must be clear, unambiguous and conclusively dispose of the matter. A release is a contract and will be governed by contract law. If the release is not void by statute or public policy a release absolving a party of negligence will be enforced.

The court found the language of the release was clear and unambiguous and thus enforceable and binding upon the parties. The release is valid and enforceable unless the plaintiff claims duress, illegality, fraud or mutual mistake. Here the plaintiff did not plead any of those.

Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against public policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of the plaintiff’s complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain places of public amusement, recreation and similar establishments from liability.

General Obligations Law § 5-326 was enacted to stop gyms from using a release. The courts have not looked at the statute from stopping places of amusement from using a release.

In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5-326, there must be an evidentiary showing that the individual paid a fee for use of the facility…

Here the plaintiff did not pay to use the field, the place of amusement. The plaintiff paid to join the league. The field was used for free by the league.

A plaintiff’s complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred…

Because the plaintiff did not pay the “place of amusement” the owner of the field, GOL §5-326 did not apply.

So Now What?

Release law evolves, constantly. The evolution of releases in New York went from they were void because of GOL §5-326, to unless the plaintiff can prove an exact relationship to the defendant and the statute the release will be valid.

If you use a release, you must stay current on release law. Read these articles and if your release has not been updated in a while contact me.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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Plaintiff argues that release was limited to the risks that were inherent in climbing walls. Inherent is a limiting term and does not expand the scope of the risks a release is written to include.

In addition, incorrect name on the release gave plaintiff an additional argument. The LLC registered by the Indiana Secretary of State was named differently than the named party to be protected by the release.

Luck saved the defendant in this case.

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

State: Indiana: United States District Court for the Southern District of Indiana, Indianapolis Division

Plaintiff: Alexis Wiemer

Defendant: Hoosier Heights Indoor Climbing Facility LLC,

Plaintiff Claims: Negligent Hiring and Instruction

Defendant Defenses: Release

Holding: For the Defendant

Year: 2017

Summary

Release was written broadly enough it covered negligence claims outside the normal injuries or claims from using a climbing wall. On top of that the mistakes in the release were covered by the letterhead.

Injury occurred because belayer did not know how to use the braking device.

A lot of things could have gone wrong because the climbing wall was not paying attention, but got lucky.

Facts

The plaintiff was a beginner in climbing and using climbing walls. Before climbing he signed a release and attended a facility orientation which covered training “on how to boulder, belay, and top rope climb.” The training received by the plaintiff was taught by an employee with little experience and mostly went over the defendant’s instructional books on rock climbing.

On the day of the accident, the plaintiff went to climb with a co-worker. While climbing the co-worker failed to use the belay device properly.

Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations. [emphasize added]

The plaintiff sued for his injuries.

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

The plaintiff’s first argument was the name of the parties to be released was not the legal name of the facility where the accident occurred. The facility was owned by a Limited Liability Company (LLC) registered with the state of Indiana as “Hoosier Heights Indoor Climbing Facility.” On the release, the name of the party to be protected was “Hoosier Heights Indoor Rock Climbing Facility.” The release name had an extra word, “rock.”

The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C. Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State, although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy created ambiguity as to who Wiemer contracted with.

However, the name and logo on the top of the release identified the company correctly, Hoosier Heights Indoor Climbing Facility.

Since the release was a contract, the court was required to determine if the name issue made the contract ambiguous. Ambiguous means the language of the contract could be interpreted in more than one way. The name issue was not enough to find the contract was unambiguous so that the release was not void. The name issue was minor, and the correct name was at the top of the contract.

Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.

The second argument the plaintiff made was the release did not cover the claimed negligence of the defendant for negligent instruction, and negligent training. Those claims are generally not defined as an inherent risk of indoor rock climbing.

The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.

Inherent is a restrictive word. See 2015 SLRA – Inherent Risk: Should the Phrase be in your Release? and Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release, and is interpreted differently by various courts. Consequently, the use of the word inherent can be dangerous in that it limits the breadth of the release.

Under Indiana’s law a release must be “specific and explicitly refer to the waiving [of] that the party’s negligence.” However, that explicit reference is not necessary for a claim that is inherent in the activity.

Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.”

The plaintiff’s argument was:

Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume. Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing.

The court could work around this explicit necessity because it found within the release language that covered the negligent training and instruction.

…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…

It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.

By reviewing the exact language of the release, the court was able to find language that warned of the specific issues the plaintiff claimed.

Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver.

The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.

As such the court found that both claims were prevented by the release the plaintiff had signed and dismissed the case.

So Now What?

This case was won by the defendant not because of proper legal planning but by luck.

If they had not used the correct letterhead for the release, the release might have been void because it named the wrong party to be protected by the release. When writing a release, you need to include the legal name of the party to be protected as well as any marketing or doing business as names.

Indiana’s requirement that the language of the release cover the exact injury the plaintiff is claiming is not new in most states. It is also a requirement that seems to be growing by the courts to favor a contract that covers the complaint.

In the past, judges would specifically point out when a claimed injury was covered in the release. Not so much as a legal requirement but to point out to the plaintiff the release covered their complaint. That prior identification seems to be growing among the states to a requirement.

In this case the release was written broadly so that the restrictions the term inherent placed in the release were covered. But for that broad language, the climbing gym might now have survived the claim.

More important writing the release wrong protecting the wrong party would have been fatal in most states.

Finally, this is another example of a belay system that is perfect, and the user failed. There are belay systems out there that don’t require user involvement, they work as long as they are corrected properly. This accident could have been avoided if the belay system worked.

What do you think? Leave a comment.

Copyright 2017 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

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

#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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, rock climbing, training, summary judgment, indoor, climbing, rope, top, material facts, own negligence, orientation, climber, personal injuries, belayer, exculpatory clauses, falling, horse, property damage, wrongful death, risks inherent, genuine issue, business name, unambiguous, signing, equine, inherent risks, matter of law, waived, risk associated, causes of action, undersigned,


Marcf v. Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

Marcf v. Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

Murat Marcf, Plaintiff(s), against Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and LONG ISLAND FLAG FOOTBALL, INC., Defendant(s).

3015-2016

SUPREME COURT OF NEW YORK, SUFFOLK COUNTY

57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

December 11, 2017, Decided

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

CORE TERMS: league, football, flag, void, documentary evidence, signing, public policy, establishment, unambiguous, supporting papers, recreational facilities, unenforceable, participating, conclusively, recreation, amusement, playing, binding, matter of law, causes of action, entitlement, enforceable, illegality, gymnasium, producing, dispose, duress, mutual, exempt, facie

HEADNOTES

Release–Scope of Release–General Obligations Law § 5-326 did not void unambiguous waiver and release of liability where plaintiff paid fee to league to play flag football on field on which he was injured since no part of fee went to field owner. General Obligations Law § 5-326 (Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable).

COUNSEL: [*1] For Plaintiff: Siben & Siben, LLP, Bay Shore, New York.

For Defendants: Havkins Rosenfeld Ritzert & Varriale, New York, New York.

JUDGES: PETER H. MAYER, J.S.C.

OPINION BY: PETER H. MAYER

OPINION

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the defendants, dated June 15, 2016, and supporting papers; (2) Affirmation in Opposition by the plaintiff, dated August 22, 2016, and supporting papers; (3) Reply Affirmation by the defendants, dated September 15, 2016, and supporting papers; (4) Sur Reply by the plaintiff, dated September 21, 2016, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. # 001) by defendants, Middle Country Central School District (“School District”) and Long Island Flag Football, Inc., s/h/a Long Island Flag Football League, Inc. and Long Island Flag Football, Inc. (“the League”), which seeks an Order dismissing the plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (5), is hereby granted; and it is further

ORDERED that counsel for defendants shall promptly serve a copy of this Order upon counsel for all parties by First Class [*2] Mail, and shall promptly thereafter file the affidavit(s) of such service with the Suffolk County Clerk.

In this action, plaintiff alleges that on October 4, 2015 he injured his left foot while playing in a League flag football game, when he jumped to catch a pass and landed on a concealed sprinkler head. The game was being played on a field located on the grounds of Newfield High School, which is operated by the defendant School District. Prior to playing in the football game, plaintiff and his teammates signed a Waiver and Release of Liability (“Release”), which states:

In return for my being allowed to participate in any way in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., I release and agree not to sue the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., its employees directors and non-employees such as referees, coaches, agents, sponsors, and owners of fields used, from all present and future claims made by me or my family, estate, heirs or assigns for property damage, personal injury, or wrongful death arising as a result of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and caused by the ordinary negligence of the parties above, wherever, whenever, or however the same may [*3] occur. I understand and agree that those listed above are not responsible for any injury or property damage arising out of my participation out of my participation (sic) in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., even if caused by their ordinary negligence. I understand that participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. involves certain risks including, but not limited to, serious injury, severe economic losses, permanent disability, and even death. I am voluntarily participating in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. with knowledge of the danger involved and agree to accept all risks of such participation. I certify that I am in excellent physical health, and may participate [**2] in strenuous and hazardous physical activities, including the flag football to be played in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. I agree that prior to participating, I will inspect the facilities and equipment to be used, and if I believe anything unsafe, I will immediately advise my coach of said condition(s) and refuse to participate. Permission is granted for me to receive medical treatment, if needed. I also agree to indemnify and hold harmless those listed above for all claims [*4] arising out of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and all related activities. I understand that this document is intended to be as broad and inclusive as permitted by the State of New York and agree that if any portion of this agreement is invalid, the remainder will continue in full legal force and effect. I further agree that any legal proceedings related to this waiver will take place in Suffolk County, New York. I am of legal age and am freely signing this agreement.

We have read this agreement and understand that by signing this form, we are giving up legal rights and remedies and that the terms of this release are binding on each one of us.

The defendants contend in their dismissal motion that the plaintiff assumed the risk of injury while playing in the game, and that by signing the Release, the plaintiff effectively released the defendants from liability for any injuries plaintiff allegedly sustained during the game. Defendants conclude, therefore, that they are entitled to dismissal of plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (5).

Generally, on a CPLR 3211 motion to dismiss, the court will accept the facts alleged in the complaint as true, accord plaintiffs the [*5] benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Walton v New York State Dept. of Corr. Services, 13 NY3d 475, 484, 921 N.E.2d 145, 893 NYS2d 453 [2009], quoting Nonnon v City of New York, 9 NY3d 825, 827, 874 N.E.2d 720, 842 NYS2d 756 [2007]). Pursuant to CPLR 3211(a)(1), a party may move for dismissal of one or more causes of action on the ground that “a defense is founded upon documentary evidence.” Likewise, a party may move for dismissal pursuant to CPLR 3211(a)(5) on the ground that “the cause of action may not be maintained because of … [a] release” of liability.

A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 842 N.E.2d 471, 808 NYS2d 573 [2005]; Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 774 N.E.2d 1190, 746 NYS2d 858 [2002]; Leon v Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 NYS2d 972 [1994]; Thompsen v Baier, 84 AD3d 1062, 923 NYS2d 607 [2d Dept 2011]; Rietschel v Maimonides Medical Center, 83 AD3d 810, 921 NYS2d 290 [2d Dept 2011]). In other words, the documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff’s claim (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 921 NYS2d 260 [2d Dept 2011]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520, 907 NYS2d 498 [2d Dept 2010]).

When a defendant moves for CPLR 3211(a)(1) dismissal based on documentary evidence that the plaintiff signed a release of liability in favor of the defendant, dismissal may be granted where the terms of the release are clear, unambiguous and conclusively dispose of the matter (see Burgos v New York Presbyterian Hosp., 155 AD3d 598, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 AD3d 1225, 16 NYS3d 856 [2d Dept 2015]). In effect, a release is a contract and its construction [*6] is governed by contract law (see Outdoors Clothing Corp. v Schneider, 153 AD3d 717, 60 NYS3d 302 [2d Dept 2017]; Kaminsky v Gamache, 298 AD2d 361, 751 NYS2d 254 [2d Dept 2002]). Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced (see Sommer v Federal Signal Corp., 79 NY2d 540, 593 N.E.2d 1365, 583 NYS2d 957 [1992]; Deutsch v Woodridge Segway, LLC, 117 AD3d 776, 985 NYS2d 716 [2d Dept 2014]; Princetel, LLC v Buckley, 95 AD3d 855, 944 NYS2d 191 [2d Dept 2012]). A defendant establishes its prima facie entitlement to dismissal by producing the waiver and release signed by the plaintiff (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]).

If the language of a release is clear and unambiguous, the signing of a release is a “jural act” binding on the parties (see Booth v 3669 Delaware, Inc., 92 NY2d 934, 703 N.E.2d 757, 680 NYS2d 899 [2d Dept 1998]; Mangini v McClurg, 24 NY2d 556, 249 N.E.2d 386, 301 NYS2d 508 [1969]). The Court finds that the language of the subject Release is clear and unambiguous and is, therefore, valid, enforceable and binding on the parties (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Booth v 3669 Delaware, Inc., 92 NY2d 934, 703 N.E.2d 757, 680 NYS2d 899 [2d Dept 1998]). A release will not be treated lightly, and will not be set aside by a court without a showing of duress, illegality, fraud, or mutual mistake (see Liotti v Galasso, Langione and Botter, 128 AD3d 912, 8 NYS3d 578 [2d Dept 2015]; Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 AD3d 592, 865 NYS2d 323 [2d Dept 2008]; Shklovskiy v Khan, 273 AD2d 371, 709 NYS2d 208 [2d Dept 2000]; Delaney v County of Westchester, 90 AD2d 819, 455 NYS2d 839 [2d Dept 1982], appeal dismissed 59 NY2d 763 [1983]; Thives v Holmes Ambulance Service Corp., 78 AD2d 651, 432 NYS2d 235 [2d Dept 1980]). Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against pubic policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of plaintiff’s complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain [*7] places of public amusement, recreation and similar establishments from liability. In this regard GOL § 5-326 states:

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 deemed to [**3] be void as against public policy and wholly unenforceable.

In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 (see Falzone v City of New York, 128 AD3d 889, 9 NYS3d 165 [2d Dept 2015]). To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5-326, there must be an evidentiary showing that the [*8] individual paid a fee for use of the facility (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Miranda v Hampton Auto Raceway, 130 AD2d 558, 515 NYS2d 291 [2d Dept 1987]).

A plaintiff’s complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]). When a plaintiff fails to produce any evidence that he or she paid a fee for admission to, or use of, a municipality’s field, GOL § 5-326 will not void a release of liability executed by the plaintiff prior to participating in a sporting event (see Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]). Under such circumstances, the plaintiff’s waiver of liability is enforceable and not void as against public policy in violation of GOL § 5-326 (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Lee v Boro Realty, LLC, 39 AD3d 715, 832 NYS2d 453 [2d Dept 2007]; Castellanos v Nassau/Suffolk Dek Hockey, 232 AD2d 354, 648 NYS2d 143 [2d Dept 1996]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [2d Dept 1994]).

Here, by producing the Waiver and Release signed by the plaintiff, the defendants established prima facie entitlement to dismissal of the plaintiff’s complaint (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]). In opposition, plaintiff has failed to show he paid to use the field where he was allegedly injured, or that any portion of his League fee was paid to the School District for the use of the field. In fact, the affidavit of the defendant League’s President, George Hignell, shows [*9] that the School District “did not require a fee for the use of its fields” and that “[n]either the plaintiff nor the [L]eague paid a fee for use of Newfield High School athletic field” where the plaintiff is alleged to have been injured. Therefore, the Release is not void as against public policy pursuant to GOL § 5-326.

Based upon the foregoing, the plaintiff’s complaint is dismissed pursuant to CPLR 3211(a)(1) and (a)(5) (see CPLR 3211[a][1]; CPLR 3211[a][5]; Burgos v New York Presbyterian Hosp., 155 AD3d 598, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 A.D.3d 1225, 16 NYS3d 856 [2d Dept 2015] [**4] ; Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]).

This constitutes the Decision and Order of the Court.

Dated: December 11, 2017

PETER H. MAYER, J.S.C.


Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Alexis Wiemer, Plaintiff, v. Hoosier Heights Indoor Climbing Facility LLC, Defendant.

Case No. 1:16-cv-01383-TWP-MJD

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION

2017 U.S. Dist. LEXIS 149663

September 15, 2017, Decided

September 15, 2017, Filed

COUNSEL: [*1] For ALEXIS WIEMER, Plaintiff: Mary Beth Ramey, Richard D. Hailey, RAMEY – HAILEY, Indianapolis, IN.

For HOOSIER HEIGHTS INDOOR CLIMBING FACILITY LLC, Defendant: Jessica Whelan, Phil L. Isenbarger, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, IN.

JUDGES: TANYA WALTON PRATT, United States District Judge.

OPINION BY: TANYA WALTON PRATT

OPINION

ENTRY ON SUMMARY JUDGMENT

This matter is before the Court on Defendant Hoosier Heights Indoor Climbing Facility LLC’s (“Hoosier Heights”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 (Filing No. 29). Plaintiff Alexis Wiemer (“Wiemer”) brought this action against Hoosier Heights for personal injuries sustained when he fell during a rock climbing activity. For the following reasons, the Court GRANTS Hoosier Heights’ Motion for Summary Judgment.

I. BACKGROUND

The material facts are not in dispute and are viewed in a light most favorable to Wiemer as the non-moving party. See Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 728 (7th Cir. 2011).

Hoosier Heights, located in Carmel, Indiana, is a limited liability company which owns and operates an indoor rock climbing facility. The facility is open to the public and is available for individuals of all skill levels in recreational climbing. In order to use the facilities, Hoosier Heights requires all patrons [*2] to sign and acknowledge having read and understood a “Waiver & Release of Liability” form (“Waiver”). (Filing No. 30-1.) The Waiver contains: general gym rules, exculpatory clauses relieving Hoosier Heights of liability, a medical authorization clause, an acknowledgement that the participant understands there are inherent risks to rock climbing with some risks listed, authorization to allow the Hoosier Heights’ staff to use any photographs taken during the patron’s visit for promotional materials, and a signature line for the participant. (Filing No. 30-1 at 1.) At the top of the Waiver is Hoosier Heights’ logo, address, and the name Hoosier Heights Indoor Climbing.

The Waiver states, in relevant part:

RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto, I, for myself, my heirs, my estate and personal representative, do hereby release and discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter referred to as “Hoosier Heights”) from any and all liability for injury that may result from my [*3] use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby waive and relinquish any and all actions or causes of action for personal injury, property damage or wrongful death occurring to myself arising as a result of the use of the facilities of Hoosier Heights or any activities incidental thereto, wherever or however such personal injury, property damage, or wrongful death may occur, whether foreseen or unforeseen, and for whatever period said activities may continue. I agree that under no circumstances will I, my heirs, my estate or my personal representative present any claim for personal injury, property damage or wrongful death against Hoosier Heights or its employees, members, directors, officers, agents and assigns for any of said causes of actions, whether said causes of action shall arise by the negligence of any said person or otherwise.

It is the intention of the undersigned individual to exempt and relieve Hoosier Heights and its employees, members, directors, officers, agents and assigns from liability for any personal injury, property damage or wrongful death caused by negligence.

(Filing No. 30-1.) The Waiver also contained a provision enumerating the risks [*4] inherent in the sport of rock climbing:

ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that there are significant elements of risk associated with the sport of rock climbing, including those activities that take place indoors. In addition, I realize those risks also pertain to related activities such as bouldering, incidental weight training, team building, fitness training regimens and equipment purchased or rented at Hoosier Heights. I realize that those risks may include, but are not limited to, injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facilities. I acknowledge and understand that the above list is not inclusive of all possible risks associated with rock climbing or the use of the Hoosier Heights facilities and that other unknown and unanticipated risks may result in injury, illness, paralysis, or death.

Id. In addition to executing the Waiver, Hoosier Heights requires that all patrons attend and acknowledge undergoing orientation and training.

Wiemer visited Hoosier Heights in October 2014. On that date, he attended [*5] a facility orientation, which is an employee-guided training on how to boulder, belay, and top rope climb.1 (Filing No. 30-7.) If a customer intends to use the “top rope” climbing area of the facility, they must first complete the “top rope” orientation and initial and sign the facility orientation form in the appropriate locations. Following his orientation and training, Wiemer signed a Waiver form.

1 Top rope climbing is a style of climbing in which a rope runs from a belayer at the foot of the climbing wall which is connected to an anchor system at the top of the wall and back down to the climber. Both climber and the belayer are attached to the rope through a harness and carabiner. The belayer is responsible for pulling the slack in the rope, which results in the climber moving up the wall. The belayer must keep the rope tight so that, in the event the climber releases from the wall, the climber remains suspended in the air and does not fall.

Kayli Mellencamp (“Mellencamp”), a part-time Hoosier Heights employee with very little rock climbing experience, provided Wiemer’s orientation and training. (Filing No. 30-6.) Mellencamp’s employee training consisted solely of reviewing company provided instructional books on rock climbing and witnessing other employee orientations. (Filing No. 67-2 at 10-11 and 13-14.) Mellencamp had no other professional rock climbing experience.

On January 14, 2015, Wiemer, along with several co-workers, including Robert Magnus (“Magnus”), traveled to Hoosier Heights for recreational rock climbing. Magnus had also previously visited Hoosier Heights, and Wiemer’s and Magnus’ Waivers were already on file and under the terms of their agreements remained in effect (Filing No. 30-6; Filing No. 30-7). Wiemer [*6] was top rope climbing while Magnus belayed below (Filing No. 30-4). Unfortunately, Wiemer fell while he was climbing. Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. (Filing No. 30-4 at 1-4.) As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations.

II. LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate 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 a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable [*7] inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). “[N]either the mere existence of some alleged factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted). “It is equally well settled, however, that where no factual disputes are present or where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate. Collins v. American Optometric Ass’n, 693 F.2d 636, 639 (7th Cir. 1982).

III. DISCUSSION

Hoosier Heights contends that Wiemer’s signing of the Waiver, which contained an explicit reference waiving liability [*8] for Hoosier Heights’ own negligence, absolves it of any liability and Wiemer expressly acknowledged that falling was a risk inherent in indoor rock climbing. Wiemer responds with two arguments in the alternative. First, he argues that the Waiver misidentifies the released party as “Hoosier Heights Indoor Rock Climbing Facility” because the Defendant’s name, as alleged in the Complaint and as evidenced by the Indiana Secretary of State Certificate of Assumed Business Name, is “Hoosier Heights Indoor Climbing Facility.” (Filing No. 67-4.) Second, Wiemer argues that Hoosier Heights negligence in the hiring and training of Mellencamp, was not an included “inherent risk” and this significantly contributed to his fall and injury.

A. Hoosier Heights’ Business Name

The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C.’ (Filing No. 30-1 at 1). Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material [*9] fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy creates ambiguity as to who Wiemer contracted with.

The Court is not persuaded by Wiemer’s argument. “Release documents shall be interpreted in the same manner as any other contract document, with the intention of the parties regarding the purpose of the document governing.” Huffman v. Monroe County Community School Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). “The meaning of a contract is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases, or even paragraphs read alone.” Huffman, 588 N.E.2d at 1267. In addition, when a contract is unambiguous, Indiana courts look to the four corners of the document to determine the intentions of the parties. Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). This analysis of contract interpretation is a question of law. Evans v. Med. & Prof’l Collection Servs., Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001).

In Evans, the Indiana Court of Appeals held that a contract was unambiguous that misidentified a business name in the agreement but included the relevant address as that of the business. Evans, 741 N.E.2d at 798. The Evans court found that the plaintiff could not recover payment from the owner, “Evans Ford,” in his personal capacity, even though that was the name indicated in the contract and the actual business [*10] was organized as a corporation under the name of “Evans Lincoln Mercury Ford, Inc.” Id. at 796-98. The court did not resort to extrinsic evidence because the contract unambiguously identified the parties despite the misidentification. See id. at 798.

In this case, the Waiver is unambiguous as to identifying the parties to the agreement. Although the language of the Release and Assumption of Risk paragraph identifies “Hoosier Heights Indoor Rock Climbing Facility,” the document’s letterhead at the top displays “Hoosier Heights Indoor Climbing,” and includes the relevant business address of Hoosier Heights where Wiemer visited. Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.

B. Negligent Training

Hoosier Heights contends that summary judgment is appropriate because the Waiver’s explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact exists [*11] regarding whether improper instruction and inadequate training, is an “inherent risk” of indoor rock climbing.

Under Indiana law, waivers containing exculpatory clauses absolving parties of liability for their own negligence must be specific and explicitly refer to waiving that party’s negligence. Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 584 (Ind. Ct. App. 2006). Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.” Id. (citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).

Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume (Filing No. 67 at 10). Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing. Id. Hoosier Heights responds that falls, as indicated by the Waiver, are a specific risk inherent in the nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by signing the Waiver (Filing No. 68 at 14). Hoosier Heights also contends that Wiemer waived any claims for improper training and instruction [*12] by its’ employees as the Waiver contains an explicit release of Hoosier Heights’ employees for any negligence. Id. at 12.

Hoosier Heights acknowledges that negligence is generally a fact-intensive question; however, it responds that it is entitled to summary judgment because Wiemer waived any claims for liability on the basis of negligence. Id. at 11. Hoosier Heights points the Court to Anderson v. Four Seasons Equestrian Center. In Anderson, the Indiana Court of Appeals held that the defendant, an equine center, was entitled to summary judgment even though the waiver at issue did not contain a specific and explicit release of the equine center due to its own negligence because the plaintiff’s injury of falling while mounting her horse was a risk inherent in the nature of the activity of horse riding. Anderson, 852 N.E.2d at 581. The plaintiff argued that her injury was due to the equine center’s negligence in caring for, conditioning, and training her horse. The court found that the plaintiff’s injury and resulting damages, including her characterization of the cause of those damages (i.e. conditioning and training of her horse), were risks that were inherent in the nature of horse riding and were exactly those for [*13] which she granted the equine center a release of liability by signing the waiver. Id. at 585.

In the present case, Wiemer signed a specific and explicit Waiver, which released Hoosier Heights from liability due to its own negligence. The Waiver explained that “rock climbing activity” at Hoosier Heights included, among other things,

…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…. I understand that the above list is not inclusive of all possible risks associated with rock climbing.

(Filing No. 30-6 at 1). In addition, a very similarly worded reference to liability from their own negligence is contained in the second paragraph of the ‘Release and Assumption of Risk’ section which states, “It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.” (Filing No. 30-1 at 1.) The direct mentions [*14] of Hoosier Heights’ own negligence adheres to the holding set in Powell that an exculpatory clause needs to be specific and explicit in referencing an absolving party’s liability from negligence.

Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver. Accordingly, summary judgment is appropriate.

IV. CONCLUSION

For the reasons stated above, the Court determines that, based on the undisputed material facts, Hoosier Heights is entitled to summary judgment as a matter of law. Hoosier Heights’ Motion for Summary Judgment (Filing No. 29) is GRANTED, and Wiemer’s Complaint is DISMISSED. Final Judgment will issue under a separate order.

SO ORDERED.

Date: 9/15/2017

/s/ Tanya Walton Pratt

TANYA WALTON PRATT, JUDGE

United States District Court

Southern District of Indiana