Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Core Terms

exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym

Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:


2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “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.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Topp Copy, 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.


Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16] of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge


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

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

Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton, Appellant, v. Nova River Runners, Inc., Appellee.

Supreme Court No. S-16422, No. 1669

Supreme Court of Alaska

2018 Alas. LEXIS 31

March 21, 2018, Decided

NOTICE: MEMORANDUM DECISIONS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT. SEE ALASKA APPELLATE GUIDELINES FOR PUBLICATION OF SUPREME COURT DECISIONS. ACCORDINGLY, THIS MEMORANDUM DECISION MAY NOT BE CITED FOR ANY PROPOSITION OF LAW, NOR AS AN EXAMPLE OF THE PROPER RESOLUTION OF ANY ISSUE.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Pamela Scott Washington, Judge pro tem. Superior Court No. 3AN-15-06866 CI.

CASE SUMMARY

OVERVIEW: HOLDINGS: [1]-A release entitled defendant rafting company to wrongful

COUNSEL: Mara E. Michaletz and David K. Gross, Birch Horton Bittner & Cherot, Anchorage, for Appellant.

Howard A. Lazar, Scott J. Gerlach, and Luba K. Bartnitskaia, Delaney Wiles, Inc., Anchorage, for Appellee.

JUDGES: Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. Winfree, Justice, with whom Carney, Justice, joins, dissenting.

OPINION

MEMORANDUM OPINION AND JUDGMENT*

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* Entered under Alaska Appellate Rule 214.

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I. INTRODUCTION

The estate of a man who drowned on a rafting trip challenged the validity of the pre-trip liability release. The superior court granted summary judgment in favor of the rafting company. Because there were no genuine issues of material fact and the release was effective under our precedent, we affirm.

II. FACTS AND PROCEEDINGS

In May 2013 Stephen Morton took part in a whitewater rafting trip on Six Mile Creek near Hope. The trip was conducted by NOVA River Runners (NOVA). This case arises out of Morton’s tragic death by drowning after his raft capsized.

A. The Release

Before embarking on a rafting trip, participants typically receive and sign [*2] NOVA’s liability release (the Release). The Release is provided as a single two-sided document. One side is entitled “Participant’s Acknowledgment of Risks” and begins with a definition of activities: “any adventure, sport or activity associated with the outdoors and/or wilderness and the use or presence of watercraft, including but not limited to kayaks, rafts, oar boats and glacier hiking and ice climbing equipment, including crampons, ski poles, climbing harnesses and associated ice climbing hardware.” The Release then states:

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, we wish to remind you this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.

The Release then provides a list of “some, but not all” of the “inherent risks,” including “[m]y . . . ability to swim . . . and/or follow instructions” and “[l]oss of control of the craft, collision, capsizing, and sinking of the craft, which can result in wetness, injury, . . . and/or drowning.” The Release next asks participants to [*3] affirm that they possess certain qualifications, including physical capability and safety awareness. The last section of the first side purports to waive liability for the negligent acts of NOVA and its employees. There is no designated space for signatures or initials on this side.

At the top of the other side, participants are asked to acknowledge that “[They] have read, understood, and accepted the terms and conditions stated herein” and that the agreement “shall be binding upon [the participant] . . . and [their] estate.” No terms or conditions appear on this side. There are then three signature blocks where up to three participants can sign, with space to include an emergency contact, allergies, and medications.

Brad Cosgrove, NOVA’s “river manager” for this trip, did not recall whether Morton read the Release before signing it, but stated that “[n]obody was rushed into signing” and that he “physically showed each participant” both sides of the Release. Bernd Horsman, who rafted with Morton that day, stated that he recalled “sign[ing] a document that briefly stated that you waive any liability in case something happens” but thought the document only had one side. He did not recall [*4] “someone physically show[ing]” the Release to him, but he wasn’t rushed into signing it. Both Horsman’s and Morton’s signatures appear on the Release.

B. The Rafting Trip

The rafting trip consisted of three canyons. NOVA would routinely give participants the opportunity to disembark after the second canyon, because the third canyon is the most difficult. Morton did not choose to disembark after the second canyon, and his raft capsized in the third canyon. Cosgrove was able to pull him from the river and attempted to resuscitate him. NOVA contacted emergency services and delivered Morton for further care, but he died shortly thereafter.

C. Legal Proceedings

Morton’s widow, Vanessa Langlois, brought suit as the personal representative of Morton’s estate (the Estate) in May 2015 under AS 09.55.580 (wrongful death) and AS 09.55.570 (survival), requesting compensatory damages, plus costs, fees, and interest. The Estate alleged that NOVA was negligent and listed multiple theories primarily based on the employees’ actions or omissions.

NOVA moved for summary judgment in November 2015, arguing that the Release barred the Estate’s claims. NOVA supported its position with the signed Release and affidavits from NOVA’s owner [*5] and Cosgrove. The Estate opposed and filed a cross-motion for summary judgment to preclude NOVA from relying on the Release. The parties then stipulated to stay formal discovery until the court had ruled on these motions but agreed on procedures for conducting discovery in the interim if needed. Pursuant to the stipulation, the parties deposed Horsman and filed supplemental briefing.

In June 2016 the superior court granted NOVA’s motion for summary judgment and denied the Estate’s, reasoning that the Release was valid under our precedent. This appeal followed. The Estate argues that the superior court erred in granting summary judgment because the Release did not satisfy the six elements of our test for a valid waiver.

III. STANDARD OF REVIEW

“We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.”1 “If the record fails to reveal a genuine factual dispute and the moving party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.”2 “Questions of contract interpretation are questions of law that we review de novo . . . .”3

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1 Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014) (citing Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013)).2 Id. (citing Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)).3 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011) (citing Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n.1 (Alaska 2004)).

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IV. DISCUSSION

Alaska Statute 09.65.290 provides that “[a] person who [*6] participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for . . . death to the person . . . that results from the inherent risks in that sports or recreational activity.” The statute does not apply, however, to “a civil action based on the . . . negligence of a provider if the negligence was the proximate cause of the . . . death.”4 Thus, in order to avoid liability for negligence, recreational companies must supplement the statutory scheme by having participants release them from liability through waivers.

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4 AS 09.65.290(c).

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Extrapolating from principles articulated in three earlier cases,5 we recently adopted, in Donahue v. Ledgends, Inc., a six-element test for finding effective waiver:

(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 [*7] 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.6

The Estate argues that NOVA’s release does not satisfy this test. We analyze these six elements in turn and conclude that NOVA’s Release is effective.7

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5 See Donahue, 331 P.3d at 346-48 (discussing Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); and Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991)).6 Id. at 348. In Donahue, a woman sued a rock climbing gym after she broke her tibia by falling a few feet onto a mat at the instruction of an employee, and we concluded that the release barred her negligence claim. Id. at 344-45.7 Our review of the record reveals no genuine issues of material fact with respect to the existence and terms of the Release.

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A. The Release Specifically And Clearly Sets Forth The Risk Being Waived.

The Estate first argues that the Release was not a “conspicuous and unequivocal statement of the risk waived” because the Release was two-sided and the sides did not appear to incorporate each other.8 For support, the Estate cites an “analogous” Uniform Commercial Code (UCC) case from Florida for the proposition that “a disclaimer is likely inconspicuous where ‘there is nothing on the face of the writing to call attention to the back of the instrument.'”9 The Estate points out that the release in Donahue had two separate pages, and the participant initialed the first page and signed the second.10 The Estate also identifies Horsman’s confusion about whether the Release had one or two sides as evidence that the Release was not conspicuous, raising possible issues of material fact about whether Morton [*8] would have been aware of the other side or whether Cosgrove actually showed each participant both sides.11

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8 See Donahue, 331 P.3d at 348.9 The Estate quotes Rudy’s Glass Constr. Co. v. E. F. Johnson Co., 404 So. 2d 1087, 1089 (Fla. Dist. App. 1981) (citing Massey-Ferguson, Inc. v. Utley, 439 S.W.2d 57 (Ky. 1969); Hunt v. Perkins Mach. Co., 352 Mass. 535, 226 N.E.2d 228 (Mass. 1967)).10 See Donahue, 331 P.3d at 345.11 The Estate raises these arguments outside the context of Donahue, but we address them here.

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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.12 We conclude that NOVA’s Release was sufficiently clear, even without an initial block on the first side. The signature page stated, “I have read, understood, and accepted the terms and conditions stated herein,” but no terms and conditions appeared on this side. A reasonable person, after reading the word “herein,” would be on notice that the document had another side.

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12 See Donahue, 331 P.3d at 349 (citing Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991)).

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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.” But NOVA’s Release, like the release in Donahue, “clearly and repeatedly disclosed the risk of the specific injury at issue”13 — here, death by drowning. Like the plaintiff in Donahue, the Estate, “[r]ather than focusing on [the] injury[,] . . . focuses on its alleged cause,”14 i.e., negligent training or instruction. But the [*9] 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.” 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.”15 Thus, the Estate’s argument that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised” is not persuasive.

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13 Id. at 348.14 Id. at 349.15 Id.

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B. The Release Uses The Word “Negligence.”

Donahue provides that “a waiver of negligence must be specifically set forth using the word ‘negligence.'”16 The Estate argues that the Release’s “references to negligence are inconsistent,” and therefore it does not fulfill our requirement that a release be “clear, explicit[,] and comprehensible in each of its essential details.”17 But we concluded in Donahue that similar language satisfied this element.

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16 Id. at 348.17 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991) (quoting Ferrell v. S. Nev. Off-Road Enthusiasts, Ltd., 147 Cal. App. 3d 309, 195 Cal. Rptr. 90, 95 (Cal. App. 1983)).

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The release in Donahue provided: “I hereby voluntarily release, forever discharge, and agree to [*10] indemnify and hold harmless the [defendant] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the defendant].”18 We emphasized that “[t]he phrase ‘any and all claims’ is thus expressly defined to include claims for negligence.”19

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18 Donahue, 331 P.3d at 345.19 Id. at 349.

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Here, the Release reads, in relevant part:

I . . . HEREBY RELEASE NOVA . . . WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss, or damage to persons or property incident to my involvement or participation in these programs, WHETHER ARISING FROM NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.

I . . . HEREBY INDEMNIFY AND HOLD HARMLESS all the above Releasees from any and all liabilities incident to my involvement or participation in these programs, EVEN IF ARISING FROM THEIR NEGLIGENCE to the fullest extent permitted by law.

NOVA’s Release uses the word “negligence” twice, and there is no material difference between the “any and all claims” language used in Donahue and the “any and all liabilities” language used here. We therefore conclude that the Release specifically set forth a waiver of negligence.

C. The Release Uses Simple Language And [*11] Emphasized Text.

Donahue provides that The intent of a release to waive liability for negligence “must be brought home to the releasor in clear, emphasized language.”20 The Estate argues that the Release fails to use clear language or adequately define the “activity” it covered and thus does not waive liability for negligence. This argument does not withstand the application of Donahue.

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20 Id. at 348.

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In Donahue, the clauses addressing negligence “[did] not appear to be ‘calculated to conceal'” and were “in a logical place where they [could not] be missed by someone who reads the release.”21 Here, the Release uses capital letters to highlight the clauses waiving negligence. Though the clauses fall near the bottom of the page, they were certainly “in a logical place where they [could not] be missed by someone who reads the release” from start to finish, and thus under Donahue they were not “calculated to conceal.” And though these clauses contain some legalese, ” releases should be read ‘as a whole’ in order to decide whether they ‘clearly notify the prospective releasor . . . of the effect of signing the agreement.'”22 The list of inherent risks uses very simple language: “cold weather,” “[m]y sense of balance,” [*12] “drowning,” “[a]ccidents or illnesses,” and “[f]atigue, chill and/or dizziness.”

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21 Id. at 350.22 Id. at 351 (quoting Kissick, 816 P.2d at 191).

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The Release extends to other activities such as “glacier hiking and ice climbing,” but any ambiguity is cleared up by the explicit list of inherent risks relating to whitewater rafting. We therefore conclude that the Release brings home to the reader its intent to waive liability for negligence using simple language and emphasized text.

D. The Release Does Not Violate Public Policy.

Donahue requires that “the release must not violate public policy.”23 Citing no legal authority, the Estate asserts that NOVA’s waiver “unquestionably violates public policy due to its vast scope.”

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23 Id. at 348.

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“Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities.”24 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 [*13] 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.'”26 Using this analysis, we deemed an all-terrain vehicle safety course “not an essential service,” meaning that “the class providers did not have a ‘decisive advantage of bargaining strength’ in requiring the release for participation in the class.”27

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24 Id. at 348 n.34 (citing Kissick, 816 P.2d at 191).25 Moore v. Hartley Motors, Inc., 36 P.3d 628, 631 (Alaska 2001) (citing Municipality of Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986)).26 Id. (quoting Locker, 723 P.2d at 1265).27 Id. at 631-32 (citing Locker, 723 P.2d at 1265).

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Similarly, here, whitewater rafting, far from being a matter of practical necessity, is an optional activity, meaning that under Moore v. Hartley Motors, Inc., NOVA did not have an advantage in bargaining strength. We therefore conclude that the Release does not violate public policy.

E. The Release Suggests An Intent To Exculpate NOVA From Liability For Employee Negligence.

Donahue provides that “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.”28 But regardless of whether acts of negligence are related to inherent risks, this requirement is met when “the injury and its alleged causes are all expressly covered [*14] in the release.”29 The Estate argues that the Release does not suggest an intent to exculpate NOVA from liability for employee negligence. We disagree.

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28 Donahue, 331 P.3d at 348.29 Id. at 352.

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As we have explained, the Release specifically covered employee negligence by including “employees” in the clause releasing NOVA from liability for negligence. Because the injury — death by drowning — and its alleged cause — employee negligence — are expressly included in the Release, it satisfies this Donahue element.30

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30 We further observe that the Release’s list of inherent risks tracks some of the Estate’s allegations about employee negligence. For example, the Estate alleged that NOVA “fail[ed] to preclude those participants who were not qualified to handle the rafting trip,” but the Release discloses that a participant’s “ability to swim . . . and/or follow instructions” was an inherent risk of the trip.

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The Estate correctly notes that the Donahue release specifically covered the risk of “inadequate warnings or instructions” from employees, unlike the general reference to employee negligence here.31 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.32

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31 Donahue, 331 P.3d at 352.32 We therefore do not reach the question whether employee negligence is unrelated to inherent risks of guided whitewater rafting. See id. at 348.

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F. The Release Does Not Represent Or Insinuate Standards Of Safety Or Maintenance.

Donahue provides that “the release agreement must not represent or insinuate standards of safety or maintenance.”33 The [*15] Estate argues that the Release violates this element with the following statement: “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.” But this statement is introduced by the word “[a]lthough” and falls within the same sentence as the disclosure that “this activity is not without risk.” This sentence is immediately followed by a sentence indicating that “[c]ertain risks cannot be eliminated without destroying the unique character of the activity.” And the Release goes on to list 11 risks inherent in whitewater rafting. Reading the Release as a whole, we cannot conclude that it represented or insinuated standards of safety or maintenance.

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33 Id.

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We noted that the release in Donahue “highlight[ed] the fallibility of [the defendant’s] employees, equipment, and facilities.”34 Here, though the Release does not — and was not required to under the Donahue elements — go that far, it does list as inherent risks “[l]oss of control of the craft” and “sinking of the craft,” raising the possibility of human error, fallible equipment, and adverse forces of nature. The Release also [*16] makes various references to the isolated, outdoor nature of the activity — listing “[c]hanging water flow,” “inclement weather,” and the “remote” location as inherent risks.

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34 Id. at 352.

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The Estate cites Ledgends, Inc. v. Kerr35 in support of its argument that the Release impermissibly both represents a standard of maintenance and tries to disclaim liability for failing to adhere to it. In Kerr, we concluded that a release that contained statements such as “[w]hile we try to make the [premises] safe” and “[w]hile we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition” was invalid because, read as a whole, it did “not conspicuously and unequivocally alert” participants of its scope.36 We went on to hold that “[t]he representations in the release regarding the [defendant]’s own efforts toward safety suggest that the release was predicated on a presumption that the [defendant] would strive to meet the standards of maintenance and safety mentioned in the release.”37

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35 91 P.3d 960 (Alaska 2004). Like Donahue, Kerr also arose out of an injury at an indoor rock climbing gym. Id. at 961.36 Id. at 963-64.37 Id. at 963.

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But the Release in question here is dissimilar in key ways. Compared to the release in Kerr, which contained language representing safety standards throughout,38 NOVA’s Release [*17] 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.

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38 Id. at 963-64.

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Because it satisfies the six Donahue elements, the Release effectively waived NOVA’s liability for negligence.

V. CONCLUSION

For the reasons explained above, we AFFIRM the superior court’s grant of summary judgment in favor of NOVA.

DISSENT BY: WINFREE

DISSENT

WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.

I respectfully [*18] dissent from the court’s decision affirming summary judgment in this case. I cannot agree with the court’s conclusions that the self-titled “Participant’s Acknowledgement [sic] of Risks”1 form actually is something other than what it calls itself — i.e., a “Release” form — and that it constitutes a valid release barring the Morton estate’s claims against NOVA River Runners.2 I would reverse the superior court’s decision, hold that the purported release is not valid under our precedent, and remand for further proceedings.

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1 The document is referred to by its title throughout, but the spelling has been changed to conform to our preferred style.2 The Participant’s Acknowledgment of Risks form signed by Stephen Morton is Appendix A to this dissent.

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The court’s application of the six factors we approved in Donahue v. Ledgends, Inc.3 ignores our prior case law from which these factors derived. Most salient to the factual situation and document at issue here is Ledgends, Inc. v. Kerr, affirming a superior court decision denying summary judgment based on a release document — titled “Release of Liability — Waiver of Claims” — that was far clearer, and certainly not less clear, than the purported release in this case.4 And although our prior cases about recreational releases have not focused on a document’s title, a title alerts a reader to the document’s purpose. In each case from which the Donahue factors derived, the [*19] document’s title clearly told the signer that the document was a release or that the signer was waiving legal claims. The release in Donahue was titled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.”5 In Kerr the form was a “Release of Liability — Waiver of Claims.”6 The rider-safety school in Moore v. Hartley Motors, Inc. presented the participant a form that instructed “You Must Read and Sign This Consent Form and Release.”7 Only in Kissick v. Schmierer did the title of the document not contain the word “release,” but that form, provided by the U.S. Air Force, was a “Covenant Not to Sue and Indemnity Agreement”8 — a title giving notice that the signer was surrendering legal rights before participating in the activity. In contrast, an “Acknowledgment of Risks” in no way alerts a reader of the possibility of waiving all negligence related to an activity. A title indicating that a document will release or waive legal liability surely is a useful starting point for evaluating the validity of a recreational release.

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3 331 P.3d 342, 348 (Alaska 2014).4 91 P.3d 960, 961 (Alaska 2004). The release language in Kerr was included as an appendix to our opinion. Id. at 963-64. The rejected release from Kerr is Appendix B to this dissent for ease of comparison with the purported release in this case.5 331 P.3d at 344.6 91 P.3d at 961.7 36 P.3d 628, 632 (Alaska 2001).8 816 P.2d 188, 190 (Alaska 1991).

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Consistent with the principle that the purpose of contract interpretation is to give effect to the [*20] parties’ reasonable expectations,9 our prior cases require us to consider the agreement as a whole10 and to resolve “any ambiguities in pre-recreational exculpatory clauses . . . against the party seeking exculpation.”11 The agreement as a whole “must ‘clearly notify the prospective releasor or indemnitor of the effect of signing the release.'”12 Applying these directives to the Acknowledgment of Risks form, I conclude the document does not clearly apprise participants that they are surrendering all claims for negligence by NOVA, particularly claims based on inadequate training.

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9 See Peterson v. Wirum, 625 P.2d 866, 872 n.10 (Alaska 1981). A release is a type of contract. See Moore, 36 P.3d at 630-31.10 Kerr, 91 P.3d at 962.11 Id. at 961 (citing Kissick, 816 P.2d at 191).12 Id. at 962 (quoting Kissick, 816 P.2d at 191).

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As can be seen in Appendix A, the Acknowledgment of Risks form’s first indication that it might be anything more than what its title suggests appears approximately three-fourths of the way down a densely printed page that, up to that point, has mentioned only “inherent risks.” There the form asks participants for a self-evaluation of their abilities. After a line break, the form asks participants to certify that they are “fully capable of participating in these activities” and will “assume full responsibility for [themselves].” Then, without another line break or any heading to signify that the form is transitioning [*21] into a liability release rather than an acknowledgment of risks, the document sets out “release” language. While parts of this section are in capital letters, they are not in bold or otherwise set off from the dense text surrounding them. In short, considering the document as a whole, the apparent intent is to hide the release language at the very bottom of a dense, one-page document with a title completely unrelated to release of liability.

Additionally, the signature page in no way alerts the reader that operative release language is contained on another page, presumably the back side of that page. The short paragraph at the top, which the court relies on to hold that the form gave participants adequate notice of the release language, says only, “I have read, understood, and accepted the terms and conditions stated herein and acknowledge that this agreement shall be binding upon myself . . . .” While the court concludes that a reasonable person “would be on notice that the document had another side” solely because of the word “herein,” the court fails to explain its conclusion. In fact, Morton’s companion who was an experienced adventure traveler as well, Horsman, remembered the document [*22] consisting of only one page. As he put it, “[T]he way I read it is ‘conditions herein.’ Well, there’s not much herein . . . .”

In addition to the document’s overall structure, the Acknowledgment of Risks form fails to comply with several standards we previously have applied to recreational activity releases. Specifically, the mere inclusion of the word “negligence” in the release language is insufficient to make the Acknowledgment of Risks form a full release of all claims. The release we held invalid in Kerr also used the word “negligence,” but we agreed with the superior court that “[w]hen read as a whole” the purported release did “not clearly and unequivocally express an intent to release the Gym for liability for its own future negligence” with respect to all matters referenced in the release.13

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

13 Id. at 963.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The superior court’s Kerr decision, which we adopted and published as expressing our own view, highlighted the ineffectiveness of a release that did not “clearly alert climbers that they [were] giving up any claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicate[d] in the release that it [would] strive to achieve and upon which the release [*23] [might] have been predicated.”14 This is precisely what the Morton estate agues here: the Acknowledgment of Risks form promised participants that NOVA would provide adequately skilled guides but did not alert participants that they were giving up claims based on NOVA’s negligent failure to provide adequately skilled guides.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

14 Id.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

NOVA indicated in its Acknowledgment of Risks form that it had “taken reasonable steps to provide [a participant] with appropriate equipment and/or skilled guides so [the participant] can enjoy an activity for which [he] may not be skilled.” This is a representation that NOVA’s guides were adequately skilled to provide participants an enjoyable trip — not one fraught with danger.15 The Morton estate alleged in its complaint that NOVA’s guides were inadequately trained and did not properly screen participants to preclude those who were unable “to handle the rafting trip” from participating. Both specific allegations related to negligent training or failure to provide guides who were adequately skilled to assist unskilled participants to safely complete the trip. The Acknowledgment of Risks form, like the defective release in Kerr, can hardly be said to give a participants [*24] notice that the participants were surrendering claims related to negligent training or supervision.16

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

15 The release could be read as requiring NOVA to provide either “appropriate equipment” or “skilled guides” but not both. But a reasonable person with no skill in rafting would almost certainly infer that NOVA intended to provide both appropriate equipment and skilled guides on a trip with Class V rapids.16 See Kerr, 91 P.3d at 963 (holding that release did not bar negligent maintenance claim because release promised to “strive to achieve” safety standards).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The court concludes otherwise because the express statement that NOVA would provide skilled guides is in a sentence that also says rafting “is not without risk” and the Acknowledgment of Risks form then lists several inherent risks of rafting. But none of the listed risks is in any way related to unskilled guides or negligence in screening other participants.17 To the contrary, the enumerated risks focus on environmental and personal factors and include natural conditions, such as “[c]hanging water flow,” “presence of marine life,” and adverse weather; personal characteristics of the participant like “sense of balance, physical coordination, ability to swim, walk and/or follow instructions” and “[f]atigue, chill and/or dizziness, which may diminish [the participant’s] reaction time and increase the risk of accident”; and the risk of an accident “occurring in remote places where there are no available medical facilities.” The Acknowledgment of Risks form does not include — as the release in Donahue did — risks related to other participants’ “limits”18 or to employees’ “inadequate warnings [*25] or instructions” that might lead to injury.19 In other words, the Acknowledgment of Risks form did not meet the fourth characteristic of a valid release — it did not suggest an intent to release NOVA from liability for negligent acts unrelated to inherent risks.20

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

17 In contrast, the valid release we discussed in Donahue explicitly listed in the inherent risks of climbing several types of possible negligence: “improperly maintained equipment,” “displaced pads or safety equipment, belay or anchor or harness failure,” “the negligence of other climbers or spotters or visitors or participants who may be present,” “participants giving or following inappropriate ‘Beta’ or climbing advice or move sequences,” and “others’ failure to follow the rules of the [Rock Gym] . . . .” Donahue v. Ledgends, Inc., 331 P.3d 342, 350 n.46 (Alaska 2014) (alteration in original).18 Id.19 See id. at 352 (holding that release at issue “expressly covered” both the type of injury “and its alleged causes,” namely “‘inadequate warnings or instructions’ from Rock Gym instructors”).20 The court states that it “do[es] not reach the question of whether employee negligence is unrelated to inherent risks of guided whitewater rafting.” It is hard to see how negligent training or providing inadequately skilled guides would ever be related to an inherent risk of guided whitewater rafting.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

I also disagree with the court’s holding that a release is necessarily valid when it sets out the risk of a specific injury — death by drowning in this case — but not its specific cause — negligent training and the provision of unskilled guides. In Donahue we rejected the participant’s argument that the release did not specifically and clearly set out the risks being waived because the release not only warned of a risk of falling but also cautioned that instructors and other employees could, through their negligence, cause falls or other types of injury.21 Here the only mention of employee negligence, buried at the bottom of a densely written, single-spaced document, is a description only in the most general terms. This type of general waiver simply does not specifically and clearly set out a waiver of the risk on which the Morton estate’s claim is based. The Morton estate alleges that [*26] Morton’s death by drowning was not due solely to the inherent risks of whitewater rafting the release listed, but rather to the provision of unskilled guides who did not adequately screen other participants. The document’s general language fails to specifically and clearly set out the risk of negligence alleged here.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

21 Donahue, 331 P.3d at 348-49.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Today’s decision allows intentionally disguised pre-recreational activity exculpatory releases and effectively lowers the bar for their validity. Because the release does not meet the standards adopted in the precedent Donahue relied on — and because if the “Release” in Kerr was an invalid release, the “Participant’s Acknowledgment of Risks” Morton signed must be an invalid release — I respectfully dissent from the court’s opinion concluding otherwise.


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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Author: Outdoor Recreation Insurance, Risk Management and Law

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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

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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