You can collect for damaged gear you rented to customers if your agreements are correct. This snowmobile outfitter recovered $27,000 for $220.11 in damages.Posted: May 13, 2019
It helps to get that much money if the customer is a jerk and tries to get out of what they owe you. It makes the final judgment even better when one of the plaintiffs is an attorney.
Citation: Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514, 2012 WL 95208
State: Colorado; United States District Court for the District of Colorado
Plaintiff: Tracy L. Hightower-Henne, and Thomas Henne
Defendant: Leonard M. Gelman
Plaintiff Claims: Violation of the Fair Debt Collections Act
Defendant Defenses: They did not violate the act
Holding: For the Defendant
The plaintiff’s in this case rented snowmobiles and brought one back damaged. The release they signed to rent the snowmobiles stated if they damaged the snowmobiles they would have to pay for the damage and any lost time the snowmobiles could not be rented (like a car rental agreement).
The plaintiffs damaged a snowmobile and agreed to pay for the damages. The Snowmobile outfitter agreed not to charge them for the lost rental income.
When the plaintiff’s got home, they denied the claim on their credit card bill. The Snowmobile outfitter sued them for the $220.11 in damages and received a judgment of $27,000.
The plaintiff then sued the attorney representing the snowmobile outfitter for violation of the federal fair debt collection’s act, which is the subject of this lawsuit. The plaintiff lost that lawsuit also.
This case shows how agreements in advance to pay for damages from rented equipment are viable and can be upheld if used.
Although this is described as a debt collection case, it is a case where an outfitter can recover for the damages done to his equipment that he rented to the plaintiffs. The facts are from this case, which took them from an underlying County Court decision in Summit County Colorado.
Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely visible to any driver. At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee and charged Mr. Henne a total of only $220.11.
…one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by CBR against Mr. and Mrs. Henne in Summit County Court. This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.
This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court does not believe that the fairing just fell off.”
Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.
CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.”
At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s sig-nature on the damage estimate and the credit card slip were forgeries. The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.”
After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees pro-vision, the court awarded CBR $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.6 The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.”
As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.
Analysis: making sense of the law based on these facts.
The facts set forth in the underlying damage recover case, are the important part. In this case, the attorney for the snowmobile outfitter was found not to have violated the federal fair debt collections act.
In awarding judgment to the defendant in this case, the judge also awarded him costs.
Defendant Leonard M. Gelman’s Motion for Summary Judgment is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.
Adding insult to injury. Sometimes it be better to quit while you are behind.
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Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514
Tracy L. Hightower-Henne, and Thomas Henne, Plaintiffs, v. Leonard M. Gelman, Defendant.
Civil Action No. 11-cv-01114-KMT-BNB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2012 U.S. Dist. LEXIS 4514
January 12, 2012, Decided
January 12, 2012, Filed
CORE TERMS: collection, collector, snowmobile, summary judgment, discovery, credit card, rental, Mountain Law Group, demand letters, email, entity, law firm, preface, missing, nonmoving party, principal purpose, regularity, regularly, disputed, opposing, genuine, rental agreement, signature, machine, ride, admissible, engaging, owed, practice of law, attorney’s fees
COUNSEL: [*1] For Tracy L. Hightower-Henne, Thomas J. Henne, Plaintiffs: Daniel Teodoru, Erin Colleen Hunter, West Brown Huntley & Hunter, P.C., Breckenridge, CO.
For Leonard M. Gelman, Defendant: Rusty David Miller, Thomas Neville Alfrey, Treece Alfrey Musat, P.C., Denver, CO.
JUDGES: Kathleen M. Tafoya, United States Magistrate Judge.
OPINION BY: Kathleen M. Tafoya
This matter is before the court on Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] (“Mot.”) filed August 12, 2011. Plaintiffs, Tracy Hightower-Henne and Thomas Henne (collectively “the Hennes”), responded on September 14, 2011 [Doc. No. 23] (“Resp.”) and the defendant filed a Reply on October 3, 2011 [Doc. No. 25]. Also considered is Plaintiffs’ “Motion to File Sur-Reply” [Doc. No. 26], which is denied.1
1 Neither the Federal Rules of Civil Procedure nor the Local Rules of Practice in the District of Colorado provide for the filing of a surreply. Additionally, the court’s review of the proposed surreply reveals it is nothing more than an attempted unauthorized additional bite at the proverbial apple and adds nothing of merit to the summary judgment analysis.
On February 8, 2010, Nebraska residents Tracy L. Hightower-Henne [*2] and her husband Thomas Henne joined a small group of friends and family for a snowmobile ride in Vail, Colorado. Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. (Mot., Ex. H, Judgment Order of County Court Judge Wayne Patton, April 21, 2011, hereinafter “Judgment Order” at 1.)2 While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. (Id.) Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. (Id. at 2.) Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely [*3] visible to any driver. (Id. at 3.) At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 (Id. at 2.) Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 (Id.) Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee5 and charged Mr. Henne oa total of only $220.11. (Mot., Ex. B.)
2 As will be discussed in more detail herein, one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by [*4] CBR against Mr. and Mrs. Henne in Summit County Court, Case Number 10 C 255 ). (See Mot., Ex. G; hereinafter, the “Summit County case.”) This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.
3 This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” (Judgment Order at 3.) The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court [*5] does not believe that the fairing just fell off.” (Id.)
4 Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.
5 CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.” (Mot., Ex. B.)
Upon their return to Nebraska, however, Mr. and Mrs. Henne apparently decided they did not want to pay for the damage to the snowmobile, even with the waiver of the rental loss, and contested the charge to Mr. Henne’s credit card resulting in a reversal of the charge by the credit card issuer. Further, the Hennes leveled criminal forgery accusations against CBR’s employee with the Frisco, Colorado Police Department (id. at 4), alleging that the acknowledgment of damage form and the credit card slip were not signed by Mr. Henne. The police department investigated, but no charges were filed.
Mr. Henne’s ultimate cancellation of his former acquiescence to payment caused CBR to contact their corporate lawyer, Defendant Gelman, and ask that he attempt to obtain payment from the Hennes, authorizing a law suit if initial requests for payment failed. Obviously, CBR was no longer willing [*6] to waive the fee for loss of rental which was part of the contract Mrs. Hightower-Henne signed. (Id. at 2.)
At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s signature on the damage estimate and the credit card slip were forgeries. (Id. at 4.) The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. (Id.) The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.” (Id.)
After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees provision, the court awarded CBR [*7] $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.6 The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.” (Mot., Ex. I, June 22, 2011 Order of Hon. Wayne Patton, hereinafter “Atty. Fee Order” at 3.) The court also found that “although this was a case akin to a small claims case, Mrs. Hightower-Henne defended the case as if it were complex litigation.”7 (Id. at 1.) Judge Patton stated, with respect to the counterclaim filed by the Hennes, that “[a]lthough Mrs. Hightower-Henne did not pursue that claim at trial it shows the lengths she was willing to go to avoid payment of what was a fairly small claim.” (Id. at 1.)
6 Costs were awarded against both Mr. and Mrs. Henne [*8] jointly and severally.
7 In December 2010, the Hennes hired outside counsel to defend them in the county court action. (Id. at 4.)
As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.
In a prodigiously perfect example of throwing good money after bad, the Hennes now continue to prosecute this federal action against the lawyer representing CBR in the Summit County case, alleging violations of the federal Fair Debt Collection Practices Act (“FDCPA”).8 Unfortunately, even though the issue was raised at some point in the county court case, (see id. at 3, “Mrs. Hightower-Henne also made allegations that Plaintiff was violating fair debt collection laws”), these particular allegations were not resolved by the county court. Therefore, this court is now compelled to reluctantly follow the Hennes down this white rabbit’s hole to resolve the federal case.
8 This case was originally filed against CBR’s lawyer by the Hennes in Summit County on March 31, 2011, suspiciously [*9] a mere one week before commencing trial on the underlying case before Judge Patton. Defendant Gelman removed the case to federal court post-trial on April 27, 2011, one week subsequent to Judge Patton’s ruling against the Hennes. Between April 27, 2011 and August 12, 2011, the Hennes could have revisited the wisdom of continuing with this case had they been so inclined. However, the Hennes have not sought to even amend their Complaint in this matter, even though the findings call into question many of the arguments embodied in the federal complaint. (See, e.g., Compl. ¶ 26.)
A. Legal Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing [*10] Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary judgment stage of litigation, a plaintiff’s version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). [*11] “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Thomson, 584 F.3d at 1312.
B. Request for Additional Discovery
As an initial matter, Plaintiffs request the court grant them further discovery in order to fully explore the matters raised by Defendant Gelman’s affidavit, attached to the Motion. [Doc. No. 17-1, hereinafter “Gelman Affidavit.”]
The party opposing summary judgment and who requests additional discovery must specify by affidavit the reasons why it cannot present facts essential to its opposition to a motion for summary judgment by demonstrating (1) the probable facts are not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable the party to obtain those facts and rebut the motion for summary judgment. Valley Forge Ins. Co. v. Healthcare Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010)(internal quotations omitted); Been v. O.K. Indust., Inc., 495 F.3d 1217, 1235 (10th Cir. 2007)(The [*12] protection under Rule 56(d) “arises only if the nonmoving party files an affidavit explaining why he or she cannot present facts to oppose the motion.”)
As noted above, the instant motion and the Gelman Affidavit were filed on August 12, 2011. The discovery cut-off date in this case was not until October 3, 2011. (Scheduling Order, [Doc. No. 10] at 6.) Therefore, written discovery could have been timely served any time prior to August 31, 2011. When Defendant filed his motion and the affidavit, Plaintiffs still had nineteen days to compose and serve interrogatories and requests for production of documents in order to obtain substantiation – or lack thereof – of the matters contained in the Gelman Affidavit. Additionally, Plaintiffs had 49 days remaining within which to notice and schedule the deposition of Mr. Gelman, or any other person. Apparently, Plaintiffs did not avail themselves of these opportunities, or, for that matter, any other attempt to obtain discovery during the entirety of the discovery period. There is no reason for the court to now accredit Plaintiffs’ professed need for discovery at this late date when they did not undertake any discovery within the appropriate time [*13] frame even though the issues were then squarely before them. The request for further discovery is denied.
C. Defendant Gelman’s Status as Debt Collector
The court has been presented with the following: the testimony through affidavit of Leonard M. Gelman; the testimony through affidavit of Tracy Hightower (Resp., Ex. 3 [Doc. No. 23-3] “Hightower Affidavit”); the Judgment Order and the Atty. Fee Order of Judge Wayne Patton referenced infra; the Complaint filed in the Summit County case – case number 10 C 255 (Mot., Ex. G); a letter from Lee Gelman to Thomas Henne dated April 1, 2010 (Mot., Ex. D; Resp., Ex. 1, “Demand Letter”); a letter to Lee Gelman from Tracy L. Hightower-Henne dated April 5, 2010 (Mot., Ex. E); an email exchange between Lee Gelman and Tracy Hightower dated April 13, 2010 (Resp., Ex. 4); an undated internet home page of Mountain Law Group (Mot., Ex. F); a document purporting to be a “Colorado Court Database” listing seven cases involving as plaintiff either Summit Interests Inc., Back Country Rentals, or Colorado Backcountry Rentals for the time period March 25, 2009 through November 18, 2010 (Resp., Ex. 7); three letters signed by “Lee Gelman, Esq.” drafted on letterhead [*14] of a law firm named Dunn Keyes Gelman & Pummell with origination dates of March 10, 2008, March 19, 2009 and December 19, 2008 (Resp., Ex. 8); and, the snowmobile rental agreements and other documents relevant to the Summit County case (Mot., Exs. A – C).
The FDCPA regulates the practices of “debt collectors.” See 15 U.S.C. § 1692(e). If a person or entity is not a debt collector, the Act does not provide any cause of action against them. Plaintiffs’ Complaint alleges only violations of the FDCPA (See Compl. [Doc. No. 2]) by Defendant Gelman; therefore, if Defendant is not a debt collector, Plaintiffs’ action must fail.
The FDCPA contains both a definition of “debt collector” and language describing certain categories of persons and entities excluded from the definition.9 Thus, an alleged debt collector may escape liability either by failing to qualify as a “debt collector” under the initial definitional language, or by falling within one of the exclusions. The plaintiff in an FDCPA claim bears the burden of proving the defendant’s debt collector status. See Zimmerman v. The CIT Group, Inc., Case No. 08-cv-00246-ZLW-KMT, 2008 U.S. Dist. LEXIS 108473, 2008 WL 5786438, at *9 (D. Colo. October 6, 2008) (citing Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 60 (2d. Cir.2004).
9 None [*15] of these enumerated exceptions are alleged to be applicable in this case.
The Act defines “debt collector” as:
[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). See Allen v. Nelnet, Inc., Case No. 06-cv-00586-REB-PAC, 2007 WL 2786432, at *8-9 (D. Colo. Sept. 24, 2007). The Supreme Court has made it clear that the FDCPA applies to attorneys “regularly” engaging in debt collection activity, including such activity in the nature of litigation. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). The FDCPA establishes two alternative predicates for “debt collector” status – engaging in such activity as the “principal purpose” of an entity’s business and/or “regularly” engaging in such collection activity. 15 U.S.C. § 1692a(6). It is clear from the evidence that debt collection is not Defendant Gelman’s or his law firm’s principal purpose, nor is debt collection the principal purpose of non-defendant CBR. Goldstein, 374 F.3d at 60-61. Therefore [*16] the court must examine the issue from the regularity perspective. The Goldstein court directed
Most important in the analysis is the assessment of facts closely relating to ordinary concepts of regularity, including (1) the absolute number of debt collection communications issued, and/or collection-related litigation matters pursued, over the relevant period(s), (2) the frequency of such communications and/or litigation activity, including whether any patterns of such activity are discernable, (3) whether the entity has personnel specifically assigned to work on debt collection activity, (4) whether the entity has systems or contractors in place to facilitate such activity, and (5) whether the activity is undertaken in connection with ongoing client relationships with entities that have retained the lawyer or firm to assist in the collection of outstanding consumer debt obligations. Facts relating to the role debt collection work plays in the practice as a whole should also be considered to the extent they bear on the question of regularity of debt collection activity . . . . Whether the law practice seeks debt collection business by marketing itself as having debt collection expertise [*17] may also be an indicator of the regularity of collection as a part of the practice.
Id. at 62-63.
1. Defendant Gelman’s Practice of Law at Mountain Law Group
The testimony of Mr. Gelman provided through his affidavit is considered by the court to be unrefuted since Plaintiffs failed to avail themselves of any discovery which might have provided grounds for contest.
After recounting his background as an environmental lawyer for the Department of Justice, Mr. Gelman describes his practice of law with the Mountain Law Group as an attorney and through the Colorado Office of Dispute Resolution as a mediator. (Gelman Aff. ¶¶ 1, 3.) Mr. Gelman also acts as the manager of his wife’s medical practice. (Id. ¶ 5.) Because of his responsibilities as a mediator and an administrator, Mr. Gelman only spends approximately 25% of his working time engaged in the practice of law through Mountain Law Group. (Id. ¶ 8.) If one considers a normal business day to be nine hours, Mr. Gelman then spends approximately 2.25 hours a day practicing law at the Mountain Law Group. Of that time at the law firm, Mr. Gelman devotes approximately 30% to “Business/Contracts,” the only area of his practice which generates any [*18] debt collection activity. (Id. ¶¶ 8, 22.) Extrapolating, then, Mr. Gelman spends approximately .67 of an hour, or approximately 45 minutes, out of each day pursuing business matters of all kinds for his clients.
One of Mr. Gelman’s business clients is CBR to which he provides legal assistance “with all of CBR’s corporate needs . . . [including] a) contract drafting and consultation on rental agreements, waivers, and other forms; and b) representation concerning regulatory and enforcement matters between the U.S. Forest Service and CBR.” (Id. ¶ 19.) Of all the clients of the Mountain Law Group’s seven lawyers, CBR is the only one who generates any debt collection work at all. (Id. ¶¶ 7, 22, 23.) Additionally, of the seven lawyers, Mr. Gelman, through his client CBR, is the only lawyer to have ever worked on, in any capacity, any debt collection matter.10 (Id.)
10 As noted in the Hightower Affidavit, it is not disputed that, as part of CBR’s employment of Mr. Gelman as their corporate attorney, they requested that he attempt to collect the Henne’s debt.. (Id. ¶ 2.)
Over a forty (40) month period, Mr. Gelman states that he sent only 18 demand letters on behalf of CBR to renters of snowmobiles [*19] who did not pay for damages they caused to CBR’s equipment. (Id. ¶ 20.) This averages out to one demand letter every 2.5 months.11
11 Of course, this does not mean that the demand letters are actually sent on such a regular basis.
In connection with Mr. Gelman’s practice of law with the Mountain Law Group, the court reviewed what is purportedly the law firm’s internet home page. (Mot., Ex. F.) This submission contains no date or retrieval or publication. Therefore, the court can give it little weight. However, as part of the analysis, the court notes that at the time of the internet display – whenever that was – the Mountain Law Group’s home page did not include any advertisement suggesting they provided debt collection services or as had any expertise in the collection of debt.
Mr. Gelman otherwise states that the Mountain Law Group neither owns nor uses any specialized computer software designed to facilitate debt collection activity. (Gelman Aff. ¶ 12.) Further, his unrefuted testimony is that the firm employs no paralegal or other staff to assist in debt collection for the firm. (Id. ¶ 5.)
Plaintiffs, however, assert that Mr. Gelman regularly and frequently pursues debt collection matters [*20] on behalf of CBR, pointing the court’s attention to a document entitled “Colorado Court Database” (“CCD”). The CCD may indicate that CBR or Summit Interests, Inc.12 was involved in seven13 case filings in 2009 and 2010. (Resp., Ex. 7.) None of the cases contained on the CCD indicate whether or not Defendant Gelman represented the named entity, nor do any of the cases identify the other parties. The CCD is in the form of a table with columnar headings, “Name,” “Case,” “Filed,” “Status,” “Party” and “County.” Under the column “Party,” six of the cases indicate “Money” and one indicates “Breach of Contract”; both of these terms are undefined. The court does not begin to understand how “Breach of Contract” for instance, can be a “party ” to a lawsuit. The court is completely unable to ascertain the relevance of this document or what bearing it has on whether or not Mr. Gelman is a debt collector since it does not reference Mr. Gelman or debt collection. The CCD, unintelligible as it stands, is therefore inadmissible and will not be considered for any purpose in the summary judgment proceeding. See Johnson v. Weld County, Colo., 594 F.3d at 1209-10.
12 In the April 1, 2010 demand letter from [*21] Mr. Gelman to Mr. Henne, Mr. Gelman professes to represent “Summit Interests, Inc., d/b/a/ Colorado Backcountry Rentals.” (Resp, [Doc. No. 23-1].)
13 The documents references more than ten items, but several have the same case number.
2. Mr. Gelman’s Debt Collection Methodology
This case involves essentially two communications from Mr. Gelman: the April 1, 2010 letter to Mr. Henne and the April 13, 2010 email from Mr. Gelman to Mrs. Hightower-Henne following her letter professing to represent Mr. Henne. (Compl. ¶¶ 21-23, 25, re: Demand Letterl and id. ¶ 24, re: April 13, 2010 email.)
a. Debt Collector Preface
In the April 1, 2010 letter, Mr. Gelman represented that “[t]his firm14 is a debt collector” and in the April 13, 2010 email, under his signature block, was the notation, “This is from a debt collector . . .” The court notes that the warning on the bottom of the April 13, 2010 email does not appear to be part of the normal signature block of Mr. Gelman, because it does not appear on the short transmission at the beginning of the email string wherein Mr. Gelman advised “Tracy,” that he just left her a voice mail as well. (Resp. at Doc. No. 23-4.) This email warning, therefore, appears [*22] to have been specifically typed in for inclusion in the lengthy portion of the email.
14 The letterhead on the communication is “Mountain Law Group.” Mountain Law Group is not a defendant in this action.
Mr. Gelman states he has mediated a large number of debt collection disputes and is therefore “relatively familiar with the collection industry.” (Gelman Aff. ¶ 11.) While the court considers the language used by Mr. Gelman – commonly referred to as a “mini-Miranda” or the “debt collector preface” – as “some” evidence to be considered in the debt collector determination, it is not particularly persuasive standing alone. First, setting forth such a debt collector preface does not create any kind of equitable estoppel. Equitable estoppel requires a showing of a misleading representation on which the opposing party justifiably relied which would result in material harm if the actor is later permitted to assert a claim inconsistent with the prior representation. Plaintiffs have offered no evidence to support a claim that they detrimentally relied upon the debt collector preface. See In re Pullen, 451 B.R. 206, 210 (Bkrtcy. N. D. Ga. 2011).
When attempting to collect a debt, the court applauds [*23] a practice whereby the sender recognizes itself as a debt collector in a mini-Miranda warning regardless of any legal requirement and considers such an advisement prudent and in the spirit of the FDCPA. This course of action would be expected of an attorney such as Mr. Gelman who frequently is in a position to mediate debt collection disputes. However, calling oneself a rose, does not necessarily arouse the same olfactory response as would a true rose.
b. Use of Form Letters
Plaintiffs argue that Mr. Gelman communicates as a debt collector through the use of form letters. For this proposition, they attach Exhibit 8, three letters apparently authored by Mr. Gelman when he was associated with the law firm of Dunn Keyes Gelman & Pummell, LLC. Each of the three letters appear to be what is commonly known as a demand letter – an attempt to collect money from persons who allegedly owed CBR as a result of damage done to a snowmobile. Each letter begins with a one line salutation introducing the lawyer as representing Colorado Backcountry Rentals, Inc. Thereafter, each letter proceeds for several paragraphs to outline specific and unique facts concerning the alleged debtor’s obligation for damages [*24] to CBR. (Id.) Each letter then contains a paragraph, in bold typeface, stating that the debtor can submit a sum certain in settlement of the matter in bold typeface. Each of the three letters contain a summary paragraph at the end which states the letter is a settlement offer and that court proceedings may be instituted if payment is not made. This general format is consistent with the April 1, 2010 demand letter sent to Mr. Henne. Two of the letters in Exhibit 8 contain the debt collector preface at both the beginning and end of the letter; one of the letters contains the legend only at the beginning, similar to the format of the April 1, 2010 demand letter sent to Mr. Henne by Mr. Gelman.
The court finds that these letters are not “form” collection letters such as those which would be utilized by a business engaged primarily in the business of debt collection. Although there is some boilerplate language common to all, each letter is personally authored and the main body of the text is a unique recitation of the facts and circumstances peculiar to that case. These three letters, viewed against the April 1, 2010 letter Mr. Gelman sent to Mr. Henne, are similar only in the boilerplate [*25] language at the beginning and end of the letter and do not persuade the court that they are form letters indicating that Mr. Gelman is in the regular business of collecting debts.
c. Pattern of Litigation Activity
Mrs. Hightower-Henne states, without any evidentiary foundation, that Defendant has filed “several suits for collections for CBR” which indicate “a pattern of escalating fees for nominal claims.” (Hightower Affidavit ¶ 4.) She does not further describe or attach any of the cases to which she refers, although one might assume they may be among those cases sketchily mentioned in rejected Exhibit 7 to the Plaintiffs’ Response. Mrs. Hightower-Henne blithely asserts that she has spoken to several persons who were “parties in these suits” but does not state what significance anything they may have told her was, or for that matter, what they even said. (Id.) Although the court will recognize this testimony as admissible, it is wholly unpersuasive as to the issue to which it is apparently directed.
Considering the undisputed testimony of Mr. Gelman and Mrs. Hightower-Henne together with the admissible documentary evidence submitted by the parties, this court finds that there [*26] are no material facts in dispute relevant to the determination of whether Mr. Gelman is a debt collector as defined in the FDCPA. For all the reasons set forth above, the court finds that Mr. Gelman is not a debt collector pursuant to the FDCPA and therefore, summary judgment in his favor is appropriate.
Given that the determination that Mr. Gelman is not a debt collector is dispositive of the case, the court declines to address further Mrs. Hightower-Henne’s standing to sue or whether any of the actions undertaken by Mr. Gelman would have violated the FDCPA had he been found to be a debt collector under the Act.
Wherefore, it is ORDERED
1. Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.
2. Plaintiffs’ “Motion to File Sur-Reply,” [Doc. No. 26] is DENIED.
3. The Final Pretrial Conference set for January 19, 2012 at 10:45 a.m. is VACATED
Dated this 12th day of January, 2012.
BY THE COURT:
/s/ Kathleen M Tafoya
Kathleen M Tafoya
United [*27] States Magistrate Judge
A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.Posted: March 5, 2018
A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Linda Schlumbrecht-Muniz, M.D.
Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT
Plaintiff Claims: negligence, negligence per se, and respondeat superior
Defendant Defenses: Colorado Skier Safety Act
Holding: for the Defendant
The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.
The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.
The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.
Analysis: making sense of the law based on these facts.
The court first looked at the requirements necessary to properly plead a claim.
“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”
This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.
The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…”
Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.
Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:
Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.
The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.
Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.
The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:
…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.
In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.
I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.
The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”
The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.
Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”
Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.
Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”
The final claim was based on respondeat superior.
Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)
Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.
So Now What?
This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.
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Under California law, you assume the risk of getting hit by a toboggan being towed by a snowmobile while snowboarding.Posted: January 15, 2018
Both sides of this case created problems for themselves, and both sides stretched their credibility. In the end, it was easy for the plaintiff to lose because of that credibility gap created by the facts and when those facts were reported.
Plaintiff: Dominique Forrester
Defendant: Sierra at Tahoe
Plaintiff Claims: General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability
Defendant Defenses: assumption of the risk
Holding: for the defendant
Snowboarder loses suit claiming a toboggan being towed by a snowmobile hit him on a beginner slope. By reporting the incident after he left the resort, he created a credibility issue.
In the end, getting hit by a toboggan being towed by a snowmobile is a risk you assume when skiing in California.
The facts in a case like this are always screwy to begin with and in my opinion, screwy from both sides of the litigation. The plaintiff and a friend were snowboarding. The plaintiff was filming his friend doing jumps. After the last jump, the plaintiff snowboarded toward the bottom which was on a beginner run waiting for his friend. While waiting, he heard someone yell, and he was hit by a toboggan. He hit his head suffering injuries. The plaintiff thought he saw a ski patroller driving away with the toboggan attached to the snowmobile. The fall broke some of his equipment also.
His friend saw the incident and stated that the driver was wearing a different uniform from what the plaintiff reported. Neither of them saw lights nor a flag on the snowmobile.
The plaintiff and his friend did not report the injury but drove home. On the way home they decided the plaintiff should call Sierra. He did and got a recording machine. He then started vomiting.
The next day the plaintiff hurt all over. Eventually, he was diagnosed with a concussion, a whiplash and disc degeneration.
The plaintiff called the ski area the next day and was told there was no one for him to talk to. He was to call back Wednesday. Wednesday, he called back and filed a report.
Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile” (patroller), got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.
The same day the plaintiff contacted an attorney.
The ski area investigated the claim. No ski patrollers or terrain park employees knew of any collision with a toboggan and a snowboarder.
MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they spoke recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.
Obviously, the ski area felt that no collision or accident had occurred. The case went to trial, and the plaintiff lost because the jury found he had assumed the risk of injuries.
Normally, juries like judges are asked to assemble, to a limited extent, the facts upon which they base their decision. In this case that was not done.
As we noted earlier, this case is unusual among liability cases in general because the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be.
The plaintiff appealed the decision.
Analysis: making sense of the law based on these facts.
The court first looked into the issues surrounding the snowmobile. The defendant kept a checklist that was to be completed each day before the snowmobile was ridden. The checklist was not kept after it was completed.
Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded daily unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found.
The day in question was one of the busiest of the year. The ski area employees testified that it was so buy, it would have been impossible to drive a snowmobile through the crowd on the slope in question.
The court then reviewed the evidence of the competing expert witnesses, both of whom offered testimony that at best seems stretched and will be ignored here and was ignored a lot by the court.
The court then reviewed the defenses offered by the ski area, starting with Primary Assumption of the Risk.
“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.”
Ski areas and other operators, sponsors and instructors of recreational activities have no duty to eliminate the risk. They do have a duty not to increase the risk beyond those inherent in the sport. The court based on this analysis looked at whether a toboggan is an inherent risk of skiing and boarding and found it was.
We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.
On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.
In both examples, the court compared the collisions to collisions with stationary objects, a lift tower and a tree.
The court looked at the facts in this case and concluded the incident was a collision with a toboggan, rather than a toboggan hitting a snowboarder. I suspect the facts in the two cases the court reviewed would have different conclusions if the lift tower or the tree had hit the skiers?
To reach this conclusion, the court went back to the statements of the experts of both the plaintiff and the defendant who testified that snowmobiles were a standard practice in the sport of skiing.
There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd.
The court then also looked at Secondary Assumption of Risk.
The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). In the latter class of cases, we concluded; the issue could be resolved by applying the doctrine of comparative fault, and the plain-tiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiffs knowing and voluntary acceptance of the risk functions as a form of contributory negligence.
The court held that discussing secondary assumption of risk was not necessary in this case because the jury found the defendant was not liable because of primary assumption of the risk.
The plaintiff also argued that an evidentiary ruling should have been made in the plaintiff’s favor because the defendant failed to keep the snowmobile checklist. The rules and laws of what evidence should be kept or can be destroyed to have changed dramatically in the past twenty years, and this area of law is a hot bed of litigation and arguments.
However, the court moved around this issue because the checklist was destroyed every day. The defendant gave the plaintiff a list of the possible drivers of snowmobiles at the resort. Because the checklist was only used by the first driver, and the snowmobile could have been ridden by someone other than the driver who completed the checklist, the court found it was not critical to the case. The plaintiff request of the information had occurred after the checklist had been destroyed as was the habit for the defendant.
So Now What?
First being hit by an object being towed by a snowmobile inbounds in California is an assumed risk. This is the first case f this type I have found. Every other case where the defendant has been held not liable because of assumption of the risk at a ski area was based on the skier or boarder hitting a fixed object.
Second, credibility maybe all you have in some cases. Consequently, you never want to stretch or destroy your credibility, and you do not want your experts to do the same.
Last, if you are hurt at a resort, get help at the resort. Some of the plaintiff’s injuries might have been mitigated if treated immediately.
However, all the above issues could be crap, if the jury ruled not because they believed the plaintiff assumed the risk, but because they did not believe the plaintiff at all.
Copyright 2017 Recreation Law (720) 334 8529
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Dominique Forrester, Plaintiff and Appellant, v. Sierra at Tahoe, Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
2017 Cal. App. Unpub. LEXIS 5204
July 27, 2017, Opinion Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
SUBSEQUENT HISTORY: Review denied by Forrester v. Sierra at Tahoe, 2017 Cal. LEXIS 7927 (Cal., Oct. 11, 2017)
PRIOR HISTORY: [*1] Superior Court of El Dorado County, No. PC20120138.
CORE TERMS: snowmobile, collision, ski, inherent risk, snowboarding, sport, checklist, toboggan, driver, ski resort, skiing, unreasonably, assumption of risk, slope, secondary, emergency, resort, ski area, skier, hit, snowboarder, patroller, patrol, risks inherent, instructional error, lift, discarded, siren, suppression, tower
JUDGES: Duarte, J.; Butz, Acting P. J., Mauro, J. concurred.
OPINION BY: Duarte, J.
Plaintiff Dominique Forrester was injured while snowboarding at defendant ski resort Sierra-at-Tahoe (Sierra) on March 7, 2010. He claimed he was hit by a toboggan, that in turn was being towed by a snowmobile, while on a beginner slope. The trial court found assumption of the risk applied to the claim, and the case went to the jury to answer the question of whether Sierra unreasonably increased the risk to Forrester above that already inherent in the sport of snowboarding. By a vote of 10 to 2, the jury answered “no.”
On appeal, plaintiff contends the trial court erred in ruling that primary assumption of the risk applied to this case, and instructing the jury accordingly. Plaintiff argues a collision with a snowmobile is not an inherent risk of snowboarding. He further contends the court incorrectly instructed the jury on secondary assumption of the risk, and erred in refusing to instruct on the willful suppression of evidence.
As we will explain, this case is unusual among liability cases in general because the very existence of the alleged accident–the collision itself–was [*2] and remains in dispute. We first conclude that unwanted contact with a snowmobile (here encompassing a towed toboggan), on a ski slope at a ski resort, is indeed an inherent risk of snowboarding. Although Forrester argues the particular alleged circumstances of the operation of the snowmobile on the day of the incident took the collision outside the boundaries of inherent risk, that issue was tendered to the jury and the jury found Sierra did not unreasonably increase the risks already inherent in snowboarding
We assume instructional error on secondary assumption of the risk but find no prejudice, and conclude that the evidence did not support an instruction on willful suppression of the evidence.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Alleged Accident
On Sunday, March 7, 2010, Forrester met his high school friend, Franklin Medina, for a day of snowboarding at Sierra. That day was the busiest of the year, with about 6,370 people at the resort. Forrester described himself as an intermediate snowboarder who does not perform jumps. He did not wear ear buds or ear phones while snowboarding and did not recall ever seeing a snowmobile in a ski area before that [*3] day.
At about 3:30 or 4:00 p.m., Forrester was filming Medina doing jumps. After the last jump, Medina snowboarded down the run to wait for Forrester. The bottom area of the ski run is known as Broadway; it is a beginner run near the teaching area and close to the lodge.
According to Forrester, as he began to snowboard down Broadway, he heard someone yell “hey.” He tried to turn around and was hit in the back of the legs. He went airborne and landed on his bottom and then hit his head. His goggles cut his face. He was hurt and dizzy. The snowmobile was 30 yards away when Forrester first saw it, and the driver “took off.” Forrester thought the driver’s jacket was orange or red, but he was not sure. He assumed only ski patrollers, who wear orange-red jackets, operated snowmobiles. He thought the snowmobile driver was wearing a beanie. Forrester did not hear the snowmobile. After the collision, Forrester slid down the mountain, and some other snowboarders asked if he was okay. He did not realize his equipment was broken until he later responded to special interrogatories.
Medina claimed he saw the incident, and that the snowmobile was in front of Forrester’s path and pulling a toboggan. [*4] He saw the toboggan clip Forrester’s feet and “take him out.” The snowmobile was going two or three times faster than Forrester. Forrester took his equipment off and walked down the mountain. Medina claimed the driver of the snowmobile was wearing a black and purple vest like the ones worn by terrain park employees (rather than the orange and red jacket described by Forrester). Medina did not see any lights on the snowmobile and did not notice a flag, nor did he hear a siren.
Forrester did not report the accident, but tried to “walk off” the injury. On the way home Forrester and Medina discussed that Forrester had been hit and decided they should call Sierra. Forrester called just after 5:00 p.m. and got an answering machine. Forrester began vomiting and they stopped in Placerville where Medina took pictures of his face. Medina drove Forrester home.
The next day, Monday, Forrester hurt all over his body, including a bad headache. He went to his doctor who ordered a CT scan, the results of which were normal. Over the next few days, Forrester’s back began to hurt. He was diagnosed with a concussion and a whiplash back injury. Forrester was later diagnosed with disc degeneration with a [*5] prognosis of ongoing pain.
Reporting the Accident
Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile (patroller),” got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.
Forrester contacted an attorney the same day he spoke with MacClellan. Forrester sent MacClellan a written report, in which he stated he “was involved in a collision with a Sierra Ski Patrol Officer (Ski Patroller) whom [sic] was driving a snow mobile, towing a stretcher. . . . The Ski Patroller was apparently attempting to cross from my left, which was behind me (I have a ‘regular’ board stance), across my face, to the right of me when he collided into me from my blind side. As a result I flew over [*6] him and crashed very hard into the mountain. I suffered a head injury, as well as whiplash, and subsequently blacked out for a short period of time.” The statement continued that Forrester did not see the “patroller” and heard no sirens; he heard only a brief “hey” right before the impact. His friend Medina had witnessed the collision and could not believe it; other snowboarders asked if Forrester was okay, but the ski patrol did not.
MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they had spoken recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.
The Lawsuit and Trial
Forrester brought suit against Sierra for general negligence and [*7] premises liability. The complaint stated: “Included in the Cause of Action for General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability.” Forrester took some theories of liability “off the table” and the trial court granted defendant’s motion for nonsuit as to others. As we explain in more detail, post, the matter was submitted to the jury as an assumption of the risk case, with the jury asked to determine whether Sierra unreasonably increased the inherent risks of snowboarding
Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded on a daily basis unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found. At trial, Sierra stipulated that anyone [*8] driving a snowmobile at the resort that day would have been employed by Sierra. The checklist would not necessarily reveal the identity of the driver of the snowmobile in any event, because once the snowmobile is checked out others may use it without completing a new checklist. Sierra maintains no record showing who is using a snowmobile at a particular time on a specific date.
A snowmobile is a loud machine; its sound is comparable to a motorcycle or lawnmower. The flashing lights are always on if the snowmobile is running, but the siren can be turned on and off. It is against Sierra’s policy to operate a snowmobile without a siren when guests are present. The snowmobile has an attached fiberglass pole with a flag atop, to aid in visibility. March 7, 2010, was a peak day and there was a blackout on the use of snowmobiles in the ski areas except for emergencies. Rice defined emergencies as ski patrol rescue, lift evacuation, a fire or gas leak on the hill, and to carry law enforcement to an altercation. There were no documented emergencies the day of the incident. MacClellan testified that with 6,000 people on the ski slopes, it would be “virtually impossible” to drive a snowmobile [*9] through the Broadway area.
The ski patrol uses orange toboggans for rescue, which are stored in different locations on the mountain and used to transport injured guests. Patrollers take them uphill by chair lift or by snowmobile. Snowmobiles are rarely used to take a toboggan down the mountain; usually a patroller skis them down. Snowmobiles do not tow injured guests in a toboggan.
In addition to medical experts, plaintiff called a ski safety consultant and an accident reconstructionist. Richard Penniman testified as an expert on ski area mountain operations. He testified it was below industry standard to have a snowmobile on the ski slopes when a large number of people are present. On a run like Broadway that is designed for beginners, it was very dangerous to have anything present other than skiers and snowboarders. It was below the industry standard to use the Broadway area as a snowmobile route. Penniman added snowmobiles are only a convenience and a ski resort can operate without them. He conceded, however, that it was standard practice for ski areas to use snowmobiles and agreed they were extremely useful in an emergency where the risk they create might be worth [*10] it. He agreed with the policy of Sierra-at-Tahoe not to use snowmobiles on busy days except in the case of an emergency. In Penniman’s opinion, Sierra’s conduct in operating a snowmobile the day of the incident increased the risk of injury to skiers and snowboarders.
Jesse Wobrock, an accident reconstructionist and bioengineer, prepared an animation of the accident. He testified the accident had “an injury mechanism for both the lumbar spine and the traumatic brain injury.” The damage to Forrester’s left binding was consistent with the height of the toboggan, as was the orange color transfer on the binding. Wobrock testified the physical evidence corroborated the eyewitness testimony. In his opinion, the snowboard went between the tread of the snowmobile and the toboggan; the toboggan ran over the snowboard.
John Gardiner, a forensic engineer and biomechanic, testified for the defense. He opined there was neither consistent testimony nor sufficient physical evidence to conclude what occurred that day. Gardiner testified that if Forrester’s left binding made contact with a toboggan, the contact occurred at the rear portion of the toboggan. If the contact had been near the [*11] front of the toboggan, the snowboard would have hit the treads of the snowmobile and caused damage; there was no evidence of damage to the front of the snowboard. In Gardiner’s opinion, the force involved in Forrester’s fall would not have caused a lumbar disc injury and a concussion. Gardiner also testified that Medina’s view of the accident would have been obstructed by the snowmobile and its driver and that Wobrock’s animation of the incident was inconsistent with the laws of physics and Forrester’s testimony.
The defense pointed out the many inconsistencies between Medina’s deposition and his trial testimony, such as where he dropped off Forrester, whether Forrester wore a helmet, Forrester’s level of skill on a snowboard, the time they finished snowboarding, and whether Medina saw the snowmobile before the collision. Medina had changed his story only after talking to Forrester. The defense argued the differences between the testimony of Medina and Forrester as to the color of the snowmobile, the clothing of the driver, the location of the accident, and the timing showed that Forrester failed to carry his burden of proof as to what happened. The defense questioned how Forrester [*12] could fail to see or hear the snowmobile and offered three possibilities: (1) the collision had not happened; (2) Forrester was not paying attention; or (3) Forrester saw the snowmobile, but not the toboggan and tried to cut behind. The defense argued number three was the most reasonable and Forrester did not report the accident because he felt it was his fault.
As relevant here, the court instructed the jury as follows:
“[CACI No.] 410. Dominique Forrester claims he was harmed while participating in snowboarding at the snow — at the Sierra at Tahoe Ski resort. To establish this claim Dominique Forrester must prove all of the following:
“1. That Sierra at Tahoe was the owner of the ski resort and that its employee was operating the snowmobile in issue in this case. Sierra at Tahoe admits that it is the owner of the ski resort and only its employee would have had access to and would have been operating a snowmobile on the ski resort.
“2. Dominique Forrester must also prove that Sierra at Tahoe unreasonably increased the risk to Dominique Forrester over and above those inherent in snowboarding;
“3. And Dominique Forrester must prove that Dominique Forrester was harmed; and lastly [*13]
“4. That Sierra at Tahoe’s conduct was a substantial factor in causing Dominique Forrester’s harm.
“[Modified CACI No.] 405. Sierra at Tahoe claims that Dominique contributed to his harm. To succeed on this claim, Sierra at Tahoe must prove the following:
“1. That Dominique Forrester assumed the risks that led to his injury; and
“2. That Dominique Forrester’s assumption of those risks was a substantial factor in causing his harm.
“If Sierra at Tahoe proves the above, Dominique Forrester’s damages are reduced by your determinations of the percentage of Dominique Forrester’s responsibility. I will calculate the actual reduction.”
Verdict and Motion for New Trial
During deliberations, the jury asked for a definition of “unreasonable” and to have Rice’s testimony about reports of emergencies that day reread. With the parties’ approval, the court responded to the first request as follows: “‘Unreasonable’ – is conduct that is contrary to conduct that a prudent person would exercise in the same or similar circumstances e.g. conduct that is careless, irrational, foolish, unwise, senseless, immoderate, exorbitant or arbitrary under the circumstances.”
By a vote of 10 to 2, the jury found Sierra did [*14] not unreasonably increase the risks to Forrester over and above those inherent in snowboarding in a ski area. Because the jury’s answer to this first question was “no,” it did not answer any additional questions contained in the verdict forms.
Forrester moved for a new trial, contending assumption of the risk did not apply to the case, there were evidentiary errors, and the court erred in not instructing on suppression of evidence. The court denied the motion.1
1 The record does not contain an order denying the motion. Under Code of Civil Procedure section 660, if there was no order, the effect is a denial of the motion.
Assumption of the Risk
A. The Law
“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” (Gregory v. Cott (2014) 59 Cal.4th 996, 1001, 176 Cal. Rptr. 3d 1, 331 P.3d 179.) “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.” (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751, 33 Cal. Rptr. 2d 732.)
“The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or [*15] reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration–or cause abandonment’ of the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156, 150 Cal. Rptr. 3d 551, 290 P.3d 1158.) “[U]nder the primary assumption of risk doctrine, operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity. (Id. at p. 1162.)
“Snowboarding is a classic example of a sport that requires participants to assume considerable risks.” (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 603, 13 Cal. Rptr. 3d 370 (Vine).) Courts have recognized many risks inherent in skiing and snowboarding. “Those risks include injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris. They also include collisions with other skiers, ski lift towers, and other properly marked or plainly visible objects and equipment.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, 37 Cal. Rptr. 3d 863.)
Whether the assumption of risk doctrine applies in a particular case is a question of law.”2 (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227, 132 Cal. Rptr. 3d 567.)
2 Although Forrester recognizes the question of whether assumption of the risk applies is a question of law reviewed de novo, he devotes a considerable portion of his briefing to arguing the trial court’s two analyses, first before trial and then on the motion for a new trial, were incorrect. “In reviewing a trial court’s decision, we review the result, not the reasoning.” (Florio v. Lau (1998) 68 Cal.App.4th 637, 653, 80 Cal. Rptr. 2d 409.)
B. Application to this Case
As we noted earlier, this case is unusual among liability cases in general because [*16] the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be. With this in mind, we turn to Forrester’s first claim of error.
Forrester contends a collision with a snowmobile is not an inherent risk of snowboarding. He argues that although some collisions–such as with trees or other skiers or snowboarders–are inherent risks, the line should be drawn at a collision between an individual and a motorized vehicle. He asserts assumption of the risk has no role in the circumstances he claims were present here: an unmarked snowmobile with no lights, siren or flag, operated by a non-safety employee on a busy beginner slope, contrary to the safety policies of the ski resort.
Sierra counters that the circumstances Forrester claims were present here, outlined immediately above, would have unreasonably increased the risks undertaken by Forrester had the jury found the circumstances were as Forrester alleged. Sierra [*17] argues that it is apparent from the jury’s “no” vote that it found circumstances more closely aligned to those alleged by the defense, such as the absence of any collision (and even the absence of any snowmobile) whatsoever and other facts favorable to Sierra.
We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.
On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.
In Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 45 Cal. Rptr. 2d 855 (Connelly), the plaintiff collided with an unpadded ski lift tower while skiing. In affirming summary judgment for the defendant, we found this risk was inherent in the sport, and the obvious danger of the tower served as its own warning. (Id. at p. 12.) In concluding that contact with the tower was an inherent risk of the sport, the Connelly court relied on Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 266 Cal. Rptr. 749, where a skier collided with a tree. Danieley, in turn, relied on a Michigan statute that set forth certain inherent risks of skiing, including both trees and “‘collisions with ski lift towers and their components'” along with properly marked or plainly visible “‘snow-making or snow-grooming [*18] equipment.'” (Id. at p. 123.) “[B]ecause the Michigan Ski Area Safety Act purports to reflect the pre-existing common law, we regard its statutory pronouncements as persuasive authority for what the common law in this subject-matter area should be in California.” (Ibid.)
In Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 41 Cal. Rptr. 3d 389 (Souza), a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run. Following Connelly, we affirmed summary judgment for the defendant, finding the snowmaking hydrant was visible and a collision with it was an inherent risk of skiing. (Id. at p. 268.)
A snowmobile is not one of the risks specifically identified in the Michigan Ski Area Safety Act, and we have not found a published case specifically deciding whether a collision on a ski slope with a snowmobile is an inherent risk of skiing or snowboarding. Nevertheless, collision with certain vehicles has been included. While Souza involved only stationary equipment, the Michigan Ski Area Safety Act–which Danieley and Connelly accepted as reflecting the common law–included a collision with snow-grooming equipment as an inherent risk. Thus, collisions with some vehicles are recognized as inherent risks of the sports of skiing and snowboarding.
We recognize that assumption [*19] of the risk applies only to risks that are necessary to the sport. (Souza, supra, 138 Cal.App.4th at p. 268.) In Souza, snowmaking equipment was necessary to the sport of skiing because nature had failed to provide adequate snow. (Ibid.) As in Souza, we find the following quote from Verro v. New York Racing Ass’n, Inc. (1989) 142 A.D.2d 396, 400, 536 N.Y.S.2d 262 apt: “As is at least implicit in plaintiff’s argument, if only the risks of ordinary and necessary dangers inherent in a sport are deemed assumed, the doctrine of [primary] assumption of risk . . . would not apply to obvious, known conditions so long as a defendant could feasibly have provided safer conditions. Then, obviously, such risks would not be ‘necessary’ or ‘inherent’. This would effectively emasculate the doctrine, however, changing the critical inquiry . . . to whether the defendant had a feasible means to remedy [the dangers].”
Forrester’s expert Penniman claimed snowmobiles were merely a convenience and a ski resort could operate without them. He also testified, however, that the use of snowmobiles was a standard practice at ski resorts. Although critical of their overuse, Penniman recognized their usefulness in an emergency. He agreed with Sierra’s policy, which permitted snowmobiles to be used on the ski slopes in cases of emergency, [*20] even on the busiest days. Thus Penniman agreed generally that the use of snowmobiles was necessary to ski resorts, although he disputed the specific circumstances under which that use might be warranted.
There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317, 79 Cal. Rptr. 2d 775.
At least one unpublished federal case has found a collision with a snowmobile to be an inherent risk of skiing or snowboarding. In Robinette v. Aspen Skiing Co., L.L.C. (D. Colo., Apr. 23, 2009, No. 08-CV-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, affd sub nom. Robinette v. Aspen Skiing Co., L.L.C. (10th Cir. 2010) 363 Fed.Appx. 547, the court found “the specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the ‘risks of skiing/riding.'” (Id. at p. *7.) The court reasoned that since “the legislature has seen fit to specifically enact safety measures to prevent skier-snowmobile collisions, one can [*21] hardly argue that such a collision somehow falls outside of [plaintiff’s] express assumption of ‘all risks of skiing.'”3 (Ibid.)
3 Although California has no similar regulation of snowmobiles at ski slopes, the requirements of the Colorado law are similar to Sierra-at-Tahoe’s policy for snowmobile operation. “All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following: One lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.” (Colo. Rev. Stat. Ann. § 33-44-108, subd. (3).)
Based on the foregoing, we conclude the trial court did not err in ruling that primary assumption of the risk applies in this case and instructing the jury accordingly. To the extent that the evidence showed a snowmobile was operating at the resort and involved in an collision with Forrester that day, its presence and that of related equipment (here apparently a towed toboggan) on the slope was an inherent risk of snowboarding at the resort. However, that risk may well have been unreasonably increased by Sierra if the specific circumstances alleged by Forrester regarding the snowmobile’s use at the time of the alleged collision were believed by the jury. But the jury was presented with a variety of competing scenarios as to what happened at the resort that day. Although we do not know which evidence it credited and which it did not, we know that it did not consider the specific circumstances of the snowmobile’s operation that day to have unreasonably increased the risk already present from the necessary use of snowmobiles at resorts.4
4 The better practice in cases such as this one, where key facts–here even the preliminary fact as to whether there was a collision at all, let alone a collision between a snowboarder and a snowmobile towing a toboggan–are in dispute, is to craft the special verdict form to require the jury to make preliminary factual findings, here such as whether the alleged accident occurred at all and the particulars, if so. (See CACI No. 410, Directions for Use [“There may also be disputed facts that must be resolved by a jury before it can be determined if the doctrine applies”], citing Shin v. Ahn (2007) 42 Cal.4th 482, 486, 64 Cal. Rptr. 3d 803, 165 P.3d 581.)
In arguing that a collision [*22] with a motorized vehicle is not an inherent risk, Forrester relies on out-of-state cases, some unpublished. We find those cases distinguishable or not persuasive. In Verberkmoes v. Lutsen Mountains Corp. (D. Minn. 1994) 844 F.Supp. 1356, a skier collided with an unmarked all terrain vehicle (ATV) parked on or near a groomed trail. The court denied summary judgment for the defendant, finding the hazard of the parked ATV was within the control of the ski resort, not an obvious risk like a lift tower, and not a hidden risk like a snow-covered stump. (Id. at pp. 1358-1359.) Defendant’s “parking of the ATV on the trail during routine maintenance of the ski slope cannot be deemed, as a matter of law, an inherent risk of skiing.” (Id. at p. 1360.) Rather, it was “a danger that reasonable prudence on the part [of defendant] would have foreseen and corrected or at least placed a warning for skiers.” (Id. at p. 1359.) We find Verberkmoes distinguishable, largely because the decision was based on where the ATV was parked; the ski resort could have easily parked it elsewhere or warned against the hazard. Here, the question was whether the resort’s use of snowmobiles on the ski slopes and consequential possibility of contact with snowboarders was an inherent risk of snowboarding.
In Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (D. Colo. 2015) 132 F.Supp.3d 1310, the defendant had argued that [*23] a collision with a snowmobile is an inherent danger and risk of skiing. The court had rejected this argument twice before, each time concluding “whether a collision with a snowmobile is an inherent danger or risk of skiing is not necessarily a question of law because what is an inherent danger or risk of skiing is not limited to the circumstances specifically enumerated in the [Ski Safety Act].” (Id. at p. 1316.) The court declined to address the argument again. (Ibid.)
We find this conclusory analysis unhelpful. For the reasons stated ante, we find a collision with a snowmobile is an inherent risk of snowboarding. As to whether this particular collision was the result of the inherent risk, the jury was properly tasked with determining whether Sierra’s operation of the snowmobile unreasonably increased the risk already inherent in snowboarding. This determination governed whether this particular collision was barred by the assumption of the risk doctrine.
Forrester also relies on an unpublished case from the state of Ohio, Coblentz v. Peters 2005 Ohio 1102, 2005 Ohio App. LEXIS 1073, that found use of a motorized golf cart was not “an actual part of the sport of golf,” so the risk of being struck and injured by a golf cart “is not an ordinary risk of the game.” [*24] (Id. at ¶ 21.) To the limited extent this case is analogous, we decline to apply its narrow analysis to the sport of snowboarding and the associated risk of encountering the resort’s necessary equipment when on the ski slopes. (See Souza, supra, 138 Cal.App.4th at p. 269 [finding snowmaking equipment necessary to the sport of skiing].)
As we have noted, unlike many assumption of the risk cases, including those cited ante, here there is a genuine factual dispute as to what happened to Forrester and caused his injuries. The jury needed to resolve this factual dispute in order to determine whether Sierra unreasonably increased the inherent risk. Accordingly, the issue of whether recovery is barred by assumption of the risk could not be determined as a matter of law, such as by a motion for summary judgment, as is often the case. Here, we need not decide if Forrester’s specific collision was an inherent risk, but only the broader question of whether a collision with a snowmobile operated on the ski slopes of a resort is an inherent risk of snowboarding. If so, recovery is still possible if Sierra unreasonably increased the risk by the specific circumstances surrounding its operation of the snowmobile.
“Although defendants generally [*25] have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316, 11 Cal. Rptr. 2d 2, 834 P.2d 696.) Numerous cases have pondered the factual question of whether various ski resorts have increased the inherent risks of skiing or snowboarding. (See Vine, supra, 118 Cal.App.4th at p. 591 [redesign of snowboarding jump]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366, 114 Cal. Rptr. 2d 265 [construction of the unmarked race start area on the ski run]; Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th 1317 [placement of signs in ski run].)
Forrester contends that even if the ski patrol’s use of a snowmobile is necessary to support the sport of snowboarding, the evidence here showed the snowmobile was not used for that purpose. Indeed, he claims that because the members of the ski patrol on duty that day denied being involved in a collision, the evidence established that the snowmobile was driven by a non-safety employee. He argues the trial court was required [*26] to resolve factual questions as to whether a member of the ski patrol was using the snowmobile before it determined whether assumption of risk applied.
We disagree with Forrester that the trial court was required to resolve these factual questions before submitting the case to the jury. Resolution of the factual issues as to how and by whom the snowmobile was operated “requires application of the governing standard of care (the duty not to increase the risks inherent in the sport) to the facts of this particular case–the traditional role of the trier of fact.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112, 86 Cal. Rptr. 3d 588.) “Our conclusion it is for the trier of fact to determine whether Vela breached his limited duty not to increase the risks inherent in the sport of volleyball finds solid support in the Supreme Court’s most recent sports injury, primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482 . . . . In Shin the Supreme Court affirmed the trial court’s denial of a motion for summary judgment brought by a golfer who had struck one of his own playing partners with a tee shot. The court held the primary assumption of the risk doctrine regulates the duty a golfer owes both to playing partners and to other golfers on the course, found being hit by a stray [*27] golf shot was an inherent risk of the sport and concluded ‘golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.”‘ [Citation.] However, the Court also held whether the defendant had breached that limited duty of care by engaging in reckless conduct was a question for the trier of fact: ‘In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. . . . [¶] Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. . . . [¶] . . . This record is simply too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly. This will be a question the jury will ultimately resolve based on a more complete examination of the facts.’ [Citation.]” (Luna, at pp. 112-113.) “In light of the Supreme Court’s decision in Shin, we conclude as the Luna court did, that resolving the question of whether [defendant] increased the risk of falling is properly decided by the trier [*28] of fact.” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1062, 183 Cal. Rptr. 3d 566.)
Forrester’s argument about the circumstances of the snowmobile’s use that day is premised upon the jury’s accepting his version of events–that a snowmobile hit him from behind, while driven by a non-safety employee who was not responding to an emergency and who was operating without lights, siren, or flag and contrary to numerous safety policies of Sierra. In short, Forrester assumes that the snowmobile had no legitimate reason to be on Broadway at the time of the incident. But the state of the evidence was such that the jury could decide otherwise. Due to Forrester’s failure to report the accident when it happened, the conflicting testimony of Forrester and Medina, the conflict in expert testimony as to how a collision would have occurred and what caused Forrester’s injuries, and the absence of any independent witness who saw or even heard about the accident, the jury could have rationally concluded the accident did not happen at all. Alternatively, the jury could have concluded that Forrester hit the toboggan out of carelessness or recklessness, Forrester’s injuries were not from the collision, or simply that Forrester failed to prove his version of the accident.
This [*29] case turned in large part on the jury’s assessment of credibility. There was evidence from which the jury could conclude that the incident occurred as described by Forrester and Medina, and that Sierra unreasonably increased its visitors’ inherent risk of a collision with a snowmobile accordingly–because a non-safety employee, not responding to an emergency, drove a snowmobile at significant speed across a beginner run on the busiest day of the year without using lights, siren or a flag, and in contravention of numerous safety policies. These circumstances, or any combination thereof, could certainly constitute an unreasonable increase of the inherent risk by Sierra. Forrester’s theory was tendered to the jury and the jury decided adversely to his argument. Forrester does not challenge the sufficiency of the evidence to support the verdict.
The trial court did not err in determining assumption of the risk applied and submitting the case to the jury on the question of whether Sierra unreasonably increased the risk inherent in the sport of snowboarding.
Instruction on Secondary Assumption of the Risk
As we set forth ante, the jury was also instructed pursuant to CACI No. 405–the comparative [*30] fault instruction modified by the trial court–as to secondary assumption of the risk. The jury was told that in order for Sierra to succeed on its claim that Forrester contributed to his own harm, Sierra would need to prove both that Forrester assumed the risks that led to his injury and that Forrester’s assumption of those risks was a substantial factor in causing his harm.
The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). [Citation.] In the latter class of cases, we concluded, the issue could be resolved by applying the doctrine of comparative fault, and the plaintiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal. Rptr. 3d 103, 75 P.3d 30.)
“Secondary assumption [*31] of risk [arises] where a defendant breaches a duty of care owed to the plaintiff but the plaintiff nevertheless knowingly encounters the risk created by the breach. Secondary assumption of risk is not a bar to recovery, but requires the application of comparative fault principles.” (Connelly, supra, 39 Cal.App.4th at p. 11.)
Forrester contends the special instruction on secondary assumption of the risk was incorrect because it omitted the requirement that a plaintiff “knowingly” or “voluntarily” accept the increased risk, and because the court failed to set it apart from the instruction related to primary assumption of the risk. Forrester contends the error prejudiced him because it confused the jury on the law.
As Sierra does not defend the instruction, we will assume arguendo that it is incorrect for omitting “knowingly” or “voluntarily.” We reject, however, the argument that it was error to instruct on secondary assumption of the risk immediately after instructing in the language of CACI No. 410 on primary assumption of the risk. Each instruction begins by noting the party whose claim the instruction addresses and what each party must prove to succeed on its claim. The two claims are necessarily related. “Nevertheless, in [*32] certain circumstances primary and secondary assumption of risk are intertwined and instruction is required so the jury can properly determine whether the defendant did, in fact, increase the risks inherent in a hazardous sport so that secondary assumption of risk should be considered.” (Vine, supra, 118 Cal.App.4th at p. 592.)
“Cases like this one, where the plaintiff contends the defendant breached the duty not to increase the risks inherent in a hazardous sporting activity, present both aspects of the assumption of risk doctrine. If the plaintiff fails to show any increase in the inherent risks, or if the trial court determines that the only risks encountered were inherent in the sport, the defendant prevails based on primary assumption of risk. If the jury, properly instructed on the scope of the defendant’s duty, determines the defendant did increase the inherent risk, it then considers the plaintiff’s claim based on secondary assumption of risk as an aspect of the plaintiff’s comparative fault.” (Vine, supra, 118 Cal.App.4th at p. 593.)
“[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case [*33] ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580, 34 Cal. Rptr. 2d 607, 882 P.2d 298 (Soule).)
“Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule, supra, 8 Cal.4th at p. 580.) Actual prejudice must be assessed in the context of the entire record using a multifactor test. (Ibid.) “Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)
Forrester contends the record demonstrates prejudice because there was strong evidence that Sierra increased the risk by its operation of a snowmobile that day, the jury deliberated for two full days, and the request for a definition of “unreasonable” suggests the jury was confused as to the law.
We disagree that the record shows it was “probable” that the instructional error “prejudicially affected the verdict.” (Soule, supra, 8 Cal.4th at p. 580.) As we have discussed, the evidence raised questions [*34] of witness credibility, and the jury was also called upon to consider conflicting expert testimony. The jury heard five days of evidence and deliberated for two days. In that circumstance, the jury’s two days of deliberation may suggest its “conscientious performance of its civic duty, rather than its difficulty in reaching a decision.” (People v. Walker (1995) 31 Cal.App.4th 432, 439, 37 Cal. Rptr. 2d 167 [six and one-half hours of deliberation after two and one-half hours of presentation of evidence].) The jury’s request for a definition of “unreasonable” and its request for a reread of evidence as to whether there was an emergency that day indicate the jury was most likely focused on Sierra’s conduct, not Forrester’s.
The most useful guide for the jury in sorting through the issues of primary and secondary assumption of the risk was the verdict form that separated the issues. The verdict form asked six questions; only if the jury answered yes to a question was it to proceed to the next question. The questions were: (1) Did Sierra or its employee unreasonably increase the risks inherent in snowboarding? (2) Was this unreasonable increase in the risks a substantial factor in causing harm to Forrester? (3) What are Forrester’s total damages? (4) Did [*35] Forrester assume the risks that led to his injury? (5) Was that assumption of risk a substantial factor in causing his injury? (6) What percentage of responsibility for Forrester’s harm do you assign to Sierra, to Forrester? The jury answered the first question “no” and therefore did not answer any other questions. Accordingly, the jury never reached the issue of secondary assumption of risk and thus never had to apply the challenged jury instruction. Forrester has failed to show prejudicial instructional error. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 206, 48 Cal. Rptr. 2d 448 [error to grant new trial due to instructional error when jury never reached issue covered by instruction]; Vahey v. Sacia (1981) 126 Cal.App.3d 171, 179-180, 178 Cal. Rptr. 559 [purported instructional error on damages was not prejudicial where jury found the defendant was not negligent and never reached the issue of damages].)
Refusal to Instruct on Willful Suppression of Evidence
At trial, Forrester made much of the fact that the snowmobile’s driver was never identified, which he blamed on Sierra’s failure to retain the daily checklist completed by the driver who had taken out the snowmobile that day. Before trial, Forrester sought to admit Sierra’s special ski permit and winter operation plan from the United States Forest [*36] Service. He argued Sierra was required to maintain the checklist under the document retention policy set forth in that plan. The trial court excluded the document, ruling that whether Sierra had a contractual duty to retain the report was irrelevant, particularly because–given the evidence that the snowmobile could be used by multiple people in the same day–the checklist would not necessarily indicate who was driving a snowmobile at the time of the alleged accident. The court noted that Sierra had provided Forrester with a list of 19 authorized drivers.
Forrester requested that the trial court give CACI No. 204, which provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” The request was based on evidence that MacClellan failed to interview all 19 people authorized to use a snowmobile that day and the destruction of the checklist. The court denied Forrester’s request.
Forrester raised the failure to give CACI No. 204 in his motion for a new trial.
Forrester contends it was error to refuse the requested instruction. For the first time on appeal, he asserts [*37] the snowmobile driver’s leaving the scene of the accident without identifying himself was sufficient evidence to support the instruction. As to the destruction of the checklist, the basis for instruction advanced at trial, Forrester argues there was no evidence the checklist was actually discarded, only that the practice was to discard the checklists daily. He contends he was prejudiced by lack of the instruction because he could not argue the presumption that the destroyed evidence was unfavorable to Sierra to offset the inability to identify the driver.
“A party is entitled to have the jury instructed on his theory of the case, if it is reasonable and finds support in the pleadings and evidence or any inference which may properly be drawn from the evidence.” (Western Decor & Furnishings Industries, Inc. v. Bank of America (1979) 91 Cal.App.3d 293, 309, 154 Cal. Rptr. 287.) An instruction on willful suppression of evidence is appropriate if there is evidence “that a party destroyed evidence with the intention of preventing its use in litigation.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434, 86 Cal. Rptr. 3d 457.)
First, Forrester did not rely at trial on the theory that evidence was destroyed when the snowmobile driver left without identifying himself. “‘A civil litigant must propose complete instructions in accordance with his or her theory of the litigation [*38] and a trial court is not “obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.” [Citations.]’ [Citation.]” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653, 57 Cal. Rptr. 2d 525.) Thus we need not consider this new theory first advanced on appeal.
Further, the evidence established the checklist had been discarded shortly after the accident, before Forrester made his complaint. While there was no testimony from the person who discarded the checklist for that day and MacClellan testified he did not know if the specific checklist had been discarded, Rice testified the checklists were thrown out on a daily basis and MacClellan testified he knew they were thrown out shortly after they were filled out.
Forrester relies on Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 150 Cal. Rptr. 3d 861, claiming it is “right on point.” In Ventura, a negligent hiring and supervision case, the trial court gave the instruction at issue here based on testimony of the human resources director about redactions in personnel records and the defendant’s failure to interview certain witnesses during the investigation of plaintiff’s complaints. (Id. at p. 273.) The appellate court found no error, noting “Defendants were free to present the jury with evidence that (as counsel represented to the [*39] court), the redactions were only of telephone numbers, and that the failure to interview certain witnesses was proper, and to argue that evidence to the jury.” (Ibid.)
Ventura is distinguishable. There, the actions that supported the instruction occurred during the investigation of plaintiff’s claim, thus permitting an inference there was destruction of evidence to prevent its use in litigation. Here, the evidence was that the snowmobile checklists were routinely discarded each day long before the incident at issue here, unless information on the checklist triggered a need for maintenance. Because Forrester did not report his accident until multiple days had passed, Sierra did not become aware of Forrester’s claim until after the checklist at issue had been discarded. There was no evidence, either direct or from which the inference could be drawn, that the practice of discarding the checklists daily was intended to forestall their use in litigation.
The trial court did not err in declining to give CACI No. 204 on willful suppression of evidence.5
5 Further, Forrester’s claim of prejudice is unconvincing. The instruction permits the jury to draw the inference that the suppressed evidence would have been unfavorable to the party suppressing it. The checklist would have shown, at most, the name of the snowmobile driver. Sierra stipulated that the driver was one of its employees and provided Forrester with a list of authorized drivers.
The judgment is affirmed. Sierra shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/ Duarte, J.
/s/ Butz, Acting P. J.
/s/ Mauro, J.
Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427Posted: June 4, 2017
Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427
Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs v. Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants
Case No. 15-cv-100-SM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
2016 DNH 199; 2016 U.S. Dist. LEXIS 150427
October 31, 2016, Decided
October 31, 2016, Filed
PRIOR HISTORY: Lizzol v. Bros. Prop. Mgmt. Corp., 2016 U.S. Dist. LEXIS 16863 (D.N.H., 2016)
COUNSEL: [*1] For Jennifer Lizzol, Michael Lizzol, T. G., Plaintiffs: Philip R. Waystack, Jr., Sandra L. Cabrera, LEAD ATTORNEYS, Waystack Frizzell, Colebrook, NH.
For Brothers Property Management Corporation, Out Back Kayak, Inc. OBK, Defendants: Paul B. Kleinman, Bouchard Kleinman & Wright PA (M), Manchester, NH.
For Martin Welch, Defendant: Paul B. Kleinman, LEAD ATTORNEY, Bouchard Kleinman & Wright PA (M), Manchester, NH.
JUDGES: Steven J. McAuliffe, United States District Judge.
OPINION BY: Steven J. McAuliffe
Jennifer Lizzol, her husband Michael, and their son, T.G., filed suit to recover damages for injuries sustained as a result of a snow machine accident that occurred during a winter vacation at the Mountain View Grand Resort & Spa, in Whitefield, New Hampshire (“Mountain View Grand”). Defendants move for summary judgment based upon a liability release and covenant not to sue executed by Jennifer and Michael before the accident. Defendants also move for summary judgment on Michael Lizzol’s and T.G’s bystander liability claim. For the reasons discussed, defendants’ motion is granted.
Standard of Review
When ruling on a motion for summary judgment, the court must “constru[e] the record in the light most favorable to the [*2] nonmoving party and resolv[e] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals “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). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).
Construing the record in the light most favorable to plaintiffs, and resolving all reasonable inferences in their favor, the controlling facts appear to be as follows.
The Lizzols travelled to the Mountain View Grand from Long Island, New York, on January 27, 2013, arriving in the afternoon. Prior to their arrival, Jennifer had scheduled a snowmobile lesson and tour for herself, her husband, and her son, as well as for a few of their friends, through the Mountain View Grand’s website. [*3] Defs.’ Mot. for Summary Judgment, Exh. C at p. 2. The lessons and guided tour were provided by Out Back Kayak, Inc. (“OBK”). Upon arrival at the resort, the Lizzols quickly put their luggage in their rooms, and then left to participate in the snowmobile activity, including a lesson and tour. Id.
The Lizzols were directed by the hotel activities desk to a small building on the grounds, where they met a Mountain View Grand employee, who told them to quickly pick out helmets and sign a two-page document that bore the following heading:
Snow Machine Tour
ACKNOWLEDGEMENT OF RISKS AND HAZARDS
COVENANT NOT TO SUE
WAIVER AND RELEASE OF LIABILITY
(the “Release”). The Lizzols felt rushed during the process, see, e.g., Defs.’ Mot. for Summary Judgment, Exh. C. at p. 3, but both Jennifer and Michael had an opportunity to review the Release, and each signed and initialed it. (Jennifer executed the release on behalf of her minor son, T.G.). The Release includes the following language:
I . . . hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, [*4] agents, officers and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death or injury, loss of services or otherwise which may arise out of my use of eques[trian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions presently or in the future for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.
Defs.’ Mot. for Summary Judgment, Exh. A, p. 1. The Release includes five lettered paragraphs that provide tour participants with a designated space in which to place his or her initials, thereby confirming that he or she understands and acknowledges the following:
(A) that he or she is physically fit to participate in the activity;
(B) that participation in the activity may result in “bodily injury, disease, strains, fractures, partial and/or total paralysis, eye injury, dental injury, blindness, . . . cold weather injuries, heart attack, asthma, vehicle injuries, mental duress, death or other ailments that could cause serious disability;”
(C) that “[t]hese risks and dangers [*5] [of bodily injury] may be caused by the negligence of the owners, employees, officers or agents of the Mountain View Grand and/or the negligence of the participants . . . ;”
(D) that by participating “in these activities and/or use of equipment, [the participant] . . . assume[s] all risks and dangers and all responsibility for any loss and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, designees, employees of BPMC, or by any other person[;]” and
(E) that the participant “understand[s] that [he or she is] undertaking this snowmobiling activity at [his or her] own risk, freely and voluntarily without any inducement[.]”
Id. Jennifer did not initial Paragraph B or Paragraph D, and Michael did not initial Paragraph B.
After signing the Release and obtaining their helmets, the Lizzols met their tour instructor, OBK employee Martin Welch, and his assistant, Jennifer Welch. The Lizzols had no snow machine experience. Welch provided a very brief introduction to and instruction regarding operation of the snow machines. He explained how to accelerate, brake, and turn. He told them that the tour would never travel faster than 20 miles per hour. Welch then [*6] assisted the tour members with their snowmobile selections, and the tour began.
Jennifer and Michael rode on a two-person snow machine, with Jennifer operating the vehicle. They were directly behind Welch in the line of snowmobiles. Their son, T.G., rode by himself and was farther back in the line. Welch drove rather quickly during the tour, and far exceeded the self-imposed 20 miles per hour speed limitation he had announced earlier. Jennifer did not keep pace, and, as Welch increased his speed during the second half of the tour, Jennifer lost sight of him. Jennifer attempted to follow Welch’s tracks in the snow, but, in doing so, lost control of the snowmobile, which left the path and flipped over. Jennifer, Michael, and the snow machine fell down a steep embankment that was approximately seventy-five feet high.
Both Jennifer and Michael suffered physical injuries, but Jennifer’s were particularly severe. She lost consciousness, had collapsed lungs, 10 broken ribs, and multiple injuries to her spine and back.
The plaintiffs later learned that other customers may have complained that Welch drove too quickly during earlier snow machine tours. After the accident, Mountain View Grand manager, [*7] Chris Diego, asked Michael if Welch had been “going too fast again.” Pls.’ Opp. to Summary Judgment, Exh. 4, p. 6.
Jennifer, Michael, and their son brought suit against Brothers Property Management Corporation (which owns and operates the Mountain View Grand), OBK, and Martin Welch, asserting claims for negligence, including negligent training and supervision, vicarious liability, bystander liability, and loss of consortium. The defendants move for summary judgment, arguing that the contractual Release is both valid and enforceable.
Defendants argue that the scope of the Release plainly encompasses the claims at issue here because the complaint alleges that, as a result of the defendants’ negligence, they were injured while participating in the snow machine lesson and tour activity. Plaintiffs disagree.
New Hampshire law generally prohibits exculpatory contracts. McGrath v. SNH Development, Inc., 158 N.H. 540, 542, 969 A.2d 392 (2009). But, there are exceptions. Exculpatory contracts are enforceable if: “(1) they do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and (3) the plaintiff’s claims fall within the contemplation [*8] of the parties when they executed the contract.” Id. at 542 (quoting Dean v. MacDonald, 147 N.H. 263, 266-67, 786 A.2d 834 (2008)).
A. The Scope of the Release
Plaintiffs argue that the Release is not enforceable because they did not understand it to encompass claims for negligent instruction, or negligent guidance on the snow machine tour, and a reasonable person in their position would not understand the Release to bar such claims. They say that the content, structure, and organization of the Release – which plaintiffs contend is verbose, employs obfuscating language, and uses confusing sentence structure – disguised any intent to relieve the defendants of liability for their own negligence related to instruction or guidance along the trail. They point out that the words “instruction,” “lesson” and “guide” are terms that do not appear in the Release. Rather, the Release focuses on terms like “services,” “use of equipment,” and “participation in activities.” Altogether, they say, the impression is given that the Release applies only to injuries inherent to snow machine activity and the use of snow machine equipment, but not to harm resulting from an instructor’s or guide’s failure to act with reasonable care.
The parties’ differing subjective understandings [*9] of the Release’s intent is of limited relevance to the controlling analysis, however, since courts must “judge the intent of the parties by objective criteria rather than the unmanifested states of mind of the parties.” Dean, 147 N.H. at 267 (citing Lake v. Sullivan, 145 N.H. 713, 715, 766 A.2d 708 (2001) and Barnes v. New Hampshire Karting Ass’n, Inc., 128 N.H. 102, 107, 509 A.2d 151 (1986)). Under applicable New Hampshire law, courts examine the language of a release and “give the language used by the parties its common meaning and give the contract itself the meaning that would be attached to it by a reasonable person.” McGrath, 158 N.H. at 545 (internal quotations omitted) (quoting Dean, 147 N.H. at 267). “As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. (internal quotations omitted) (quoting Dean, 147 N.H. at 267). However, a defendant “will not be released from liability when the language of the contract raises any doubt as to whether the plaintiff has agreed to assume the risk of a defendant’s negligence.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 414, 807 A.2d 1274 (2002) (citations omitted).
The language used in the Release at issue here is broad in reach, detailed, and clear. A reasonable person would be hard pressed to avoid recognizing the significance and effect of the words used. The Release [*10] plainly purports to release Mountain View Grand employees and agents of all liability for their own negligence, or the negligence of others (e.g. other snowmobile activity participants), related to the snow machine instruction and tour (equipment and services). The Release repeatedly references waiving the negligence of MVG’s employees, officers and agents. For example, after warning the signatory of the serious risks of injury associated with participation in the snow machine tour, including bodily injury and death, the Release explains that those risks could be caused by “the negligence of the owners, employees or agents of the Mountain View Grand.” Defs.’ Mot. for Summary Judgment, Exh. A. The Release then states that the signatory agrees to “assume all risks and dangers and all responsibility for any loss and/or damages whether caused in whole or in part by the negligence . . . of the owners, agents, officers, designees, employees of BPMC.” Id. The Release further provides: “I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, [*11] designees or employees of BPMC.” Id.
The language of the Release unarguably applies to claims or suits based on the negligence of Mountain View Grand owners, employees, officers or agents. The Release does not qualify or limit the “negligence” being released in any way, nor is the Release ambiguous in that regard. References in the Release to “participation in [the] activity” also make clear that claims arising from the releasees’ negligence associated with the described activity are being waived.
The Lizzols participated in an activity that consisted of a snow machine lesson and a snow machine tour. Plaintiffs’ claim that they were injured because defendants negligently conducted both the snow machine lesson and the tour. Their negligence claims, then, necessarily arise directly from their participation in the activity (the snow machine lesson and tour). That the Release does not include terms like “instruction,” “lesson” or “guide” is not dispositive: “[T]he parties need not have contemplated the precise occurrence that resulted in the plaintiff’s injuries, and may adopt language that covers a broad range of accidents.” McGrath, 158 N.H. at 545 (internal citations omitted) (citing Barnes, 128 N.H. at 107). So, attempting to carve out [*12] discrete acts of negligence from the Release is futile if, as here, those discrete acts are associated with the conduct of the snow machine instruction and tour activity.
A reasonable person “would have contemplated that the agreements released the defendants from any negligence, not just from negligence inherent” in snowmobiling. McGrath, 158 N.H. at 547.
B. The Release encompasses the negligence claims against OBK
Plaintiffs further argue that the Release failed to place them on notice that they were releasing OBK from liability, since OBK is not a named party to the exculpatory contract, and is not mentioned by name. Relying on Porter v. Dartmouth College, No. 07-cv-28-PB, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831 (D.N.H. Sept. 30, 2009), plaintiffs note that the Release repeatedly makes reference to the Mountain View Grand and its equipment, but does not mention OBK or its instructors. Therefore, they say, a reasonable person would not understand that the Release also purported to absolve OBK from liability for its own negligence.
“An exculpatory contract need not specifically identify the defendant by name.” Porter, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *3 (citing Dean, 147 N.H. at 270). “However, the contract must at least provide a functional identification of the parties being released.” Id. Here, the Release reads in relevant part:
I . [*13] . . voluntarily agree to release . . . BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, . . . wrongful death or injury, loss of services or otherwise which may arise out of my use of [equestrian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.
Defs.’ Mot. for Summary Judgment, Exh. A (emphasis supplied).
Defendants point out that OBK, and Welch individually, are covered by the Release because they are both “agents” of BPMC, and they acted as the referenced “field operator” for the snow machine tour. Indeed, plaintiffs specifically alleged the existence of an agency relationship between BPMC and OBK in their Complaint. See, e.g., Compl. ¶ 48 (“Mountain View Grand controlled in whole or in part the activities engaged in by Out Back Kayak and/or its employees and is vicariously [*14] liable for the negligent actions of the snow mobile tour guides committed while engaged in the scope of employment.”). The asserted agency relationship is an essential element of plaintiffs’ vicarious liability claim. Defendants readily agree that OBK and Welch were agents of BPMC. For reasons satisfactory to the parties, they do not dispute OBK’s or Welch’s status as agents of BPMC. As BPMC’s agent, OBK and Welch are plainly covered by the Release.
Moreover, plaintiffs’ reliance on Porter is unhelpful. In Porter, the plaintiff, an undergraduate student at Dartmouth College, was fatally injured while participating in a class that included ski lessons, at a facility owned, operated, and maintained by Dartmouth. 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *1. Her estate filed suit, asserting claims for negligence and wrongful death. Id. Dartmouth argued that the claims were barred by a release agreement plaintiff signed before renting ski equipment for the class. 2009 U.S. Dist. LEXIS 90516, [WL] at *2. The release in Porter, which had been drafted by Solomon (the ski and bindings manufacturer), did not mention Dartmouth by name, and repeatedly emphasized and referred only to ski equipment being rented by the student. See 2009 U.S. Dist. LEXIS 90516, [WL] at *3. Based on those distinguishing facts, the court concluded [*15] that the release failed to place the “equipment renter on even functional notice that Dartmouth was in any way a party” to the release agreement. Id.
Unlike the release at issue in Porter, the Release here makes evident that it pertains not just to the furnishing and use of equipment associated with the snow machine activity, but also to the furnishing of services associated with that activity. The clearest example is found in the first paragraph of the Release, which provides: “In consideration of Brothers Property Management Corporation . . . furnishing services and equipment to enable me to participate in the Snow Machine tour (snowmobiling), I acknowledge and agree as follows.” Defs.’ Mot. for Summary Judgment, Exh. A (emphasis added). Indeed, nearly every time the Release references the signatory’s use of equipment, the Release also references the signatory’s participation in the snow machine lesson and tour. See id. Such references objectively manifest the parties’ intent that the Release encompass all claims based upon the negligent provision of services – including services provided by Mountain View Grand’s agent, OBK — that related to plaintiffs’ participation in the snow machine [*16] tour activity. While not identified by name, OBK and Welch were functionally identified as benefitting from the Release, when acting as agents of Mountain View Grand.
C. Jennifer’s failure to initial certain paragraphs of the Release does not preclude its enforcement.
Plaintiffs next argue that, even if the Release does encompass the claims at issue, it is still not enforceable against Jennifer, because she failed to initial paragraphs B and D of the Release. Plaintiffs characterize the lettered paragraphs as “several distinct exculpatory clauses” that they were required to agree to separately, and which, as structured, give the impression that “the participant might agree to certain terms, but not others.” Pls.’ Mem. in Opp. to Mot. for Summary Judgment at p. 18. Because Jennifer did not initial two of the contract’s paragraphs, plaintiffs say, those paragraphs are not enforceable against her. At the very least, plaintiffs continue, Jennifer’s failure to initial those paragraphs gives rise to disputed issues of material fact regarding her intent to be bound by those paragraphs, and whether there was a “meeting of the minds” with respect to releasing defendants from liability for their [*17] own negligence. Id.
In response, defendants point out that the final paragraph of the Release reads:
I have read the above paragraphs and fully understand their content. I understand that this is a Release of Liability, which will legally prevent me or any other person from filing suit and making any other claims for damages in the event of personal injury, death or property damage.
Defs.’ Mot. for Summary Judgment, Exh. A. Defendants argue that the final paragraph clearly and explicitly incorporates the terms of paragraphs B and D, and therefore plaintiffs’ argument is unavailing.
The final paragraph of the Release is unambiguous. By signing the Release, Jennifer acknowledged that she had read the entire agreement and agreed to its terms; all of its terms. Cf. Serna v. Lafayette Nordic Vill., Inc., No. 14-CV-049-JD, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *3 (D.N.H. July 16, 2015) (finding that plaintiff’s failure to sign a release on the back of a form did not bar enforcement, where plaintiff had signed the front of the agreement following a statement acknowledging that she had read the agreement on the back of the form concerning the release of liability, and agreed to its terms); see also Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 269-70, 552 A.2d 99 (1988) (“The plaintiff argues, however, that she is not bound by the [*18] condition in the release, as she never returned the release to Merchants. The return of the release, however, is irrelevant, as it was the acceptance of a check offered on the condition that it constitute payment in full, rather than the signing of the release, which bound [plaintiff]. It is also irrelevant whether she actually read the release, when the release clearly and unambiguously stated the condition, and when [plaintiff] had the opportunity to read it before cashing the check.”). Here, Jennifer acknowledged having read the entire release and objectively manifested her agreement, after which she accepted the services to be provided only on condition that a full release first be given.
The parties do not cite New Hampshire authorities directly on point, nor has the court found any, but it appears that the Tenth Circuit addressed a nearly identical issue in Elsken v. Network Multi-Family Security Corp, 49 F.3d 1470 (10th Cir. 1995). In Elsken, the plaintiff entered into a services agreement with a security corporation to provide a 24-hour alarm system. Id. at 1471. The agreement contained a limitation of liability clause, on the same page as a space provided for a party to initial. Id. at 1473. The plaintiff signed the agreement, but failed to initial the line next to the [*19] limitation of liability clause. Plaintiff there also signed the agreement below a provision “articulating a presumption that the agreement was properly executed,” which read:
Resident acknowledges that resident has read and understands all of this resident agreement including the terms and conditions on this side and the reverse side, particularly Paragraph 3.0 Limitation of Liability and agrees to the amounts set forth herein.
Id. at 1473. The plaintiff was subsequently fatally stabbed in her apartment. Her estate filed suit against the security alarm company, asserting claims for breach of contract, negligence, and breach of warranties based on the alarm company’s failure to properly respond to an alarm. Plaintiffs argued that the limitation of liability clause was not effective because plaintiff did not initial the line provided for that purpose, and, therefore, had not objectively manifested her agreement to the waiver provision. Id. at 1472-73.
The court of appeals found that plaintiff’s failure to initial the line provided did not preclude summary judgment, since plaintiff had signed “directly below a statement of acceptance of the contract that explicitly incorporates the provisions on the reverse side [*20] of the page.” Id. at 1474. The court determined that, “[b]ased upon a plain reading of the contract,” plaintiff agreed to the contract in its entirety as written. Id. So too, here. Jennifer’s signature directly follows a paragraph that references the liability waiver clauses defendants seek to enforce.
Finally, plaintiffs point to no evidence in the record that might support a finding that Jennifer’s failure to initial paragraphs B and D was in any way motivated by an objection to or non-acceptance of either of those terms. Nor do they point to evidence in the record that would support a finding that Jennifer ever expressed any objection to the terms of paragraphs B and D before executing the agreement. Indeed, the relevant evidence of record suggests that Jennifer’s failure to initial paragraphs B and D was not the product of a conscious decision. See Defs.’ Mot. for Summary Judgment, Exh. C, p. 4 (Q: “Do you have any explanation for why A, C, and E were initialed, but not B and D?” Jennifer Lizzol: “No.” . . . Q: “Was there a conscious decision on your part not to initial B and D?” Jennifer Lizzol: “No.”)
Jennifer Lizzol’s failure to initial paragraphs B and D of the Release does not render the Release [*21] or those paragraphs unenforceable against her. The same general analysis applies to Michael Lizzol’s failure to initial Paragraph B of the Release.
D. The Release does not violate public policy.
Plaintiffs argue that the Release contravenes public policy, because its enforcement would relieve an instructor from liability for his own negligent instruction. Plaintiffs contend that because the instructor/guide holds a position of authority over the conduct of the snow machine tour, the instructor/guide is uniquely positioned to ensure that the tour is conducted in a reasonably safe manner. So, plaintiffs say, releasing an instructor of his or her obligation to exercise reasonable care will result in that instructor failing to make a good faith effort to carry out his duties, which, they say, is what happened here. That contravenes public policy, they argue, because it will surely impede public safety.
The argument, while creative, avoids the public policy analysis required under New Hampshire law. “A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there [*22] was no other disparity in bargaining power.” Barnes, 128 N.H. at 106. “‘A special relationship exists when “the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service.'” Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting Barnes, 128 N.H. at 106). Additionally, a release may be against public policy if, among other things, “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (citing McGrath, 158 N.H. at 543).
Plaintiffs do not contend that a “special relationship” existed between the parties, as that term is used in the liability waiver context. Nor could they. While the Mountain View Grand is an inn, the Release does “not pertain to the usual activities of running an inn,” but instead to the Mountain View Grand’s facilitation of collateral outdoor recreation activities. Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2. And snowmobiling (like skating, Serna, id., and snowboarding, McGrath, 158 N.H. at 544) constitutes recreational activity, not “an activity ‘of such great importance or necessity to the public that it creates a special relationship.'” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting McGrath, 158 N.H. at 544).
“Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract.” McGrath, 158 N.H. at 544 (citing Barnes, 128 N.H. at 107). But, “there [is] no [*23] substantial disparity in bargaining power among the parties, despite the fact that [plaintiffs were] required to sign the release in order to” participate in the snow machine lesson and tour. Barnes, 128 N.H. at 108. Here, the plaintiffs were “under no physical or economic compulsion to sign the release,” and “[s]ince the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength” over the plaintiffs or others who sought to participate in the snowmobile lesson and tour. Barnes, 128 N.H. at 108.
The Release does not violate public policy.
E. The plaintiffs have not sufficiently established fraud in the inducement.
Finally, plaintiffs argue that the Release is unenforceable because they were fraudulently induced to enter into the agreement. Plaintiffs assert that defendants had prior knowledge that Welch generally drove too quickly when conducting snow machine tours, and, notwithstanding that knowledge, failed (negligently) to take reasonable steps to ensure that Welch conducted the tours safely. Plaintiffs further contend that they were induced to sign the Release based upon defendants’ false assurances that the lesson and tour would be conducted in a safe manner, with adequate instruction, and at [*24] a safe speed. Relying on those assurances, plaintiffs signed the Release. Plaintiffs argue that, at the very least, whether the defendants made assurances (and omissions) regarding the nature of the snow machine tour with conscious indifference to the truth, and whether the plaintiffs justifiably relied upon those statements when signing the Release, are disputed issues of material fact precluding summary judgment.
“Under New Hampshire law, fraud in the inducement is a valid defense to a contract action and can be raised to void a contract.” Bryant v. Liberty Mut. Grp., Inc., No. 11-CV-217-SM, 2013 U.S. Dist. LEXIS 76713, 2013 WL 2403483, at *9 (D.N.H. May 31, 2013) (citing Nashua Trust Co. v. Weisman, 122 N.H. 397, 400, 445 A.2d 1101 (1982)). As the parties seeking to invalidate the Release on fraudulent inducement grounds, plaintiffs bear a substantial burden: they “must establish that the other party made a representation with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it. In addition, the party seeking to prove fraud must demonstrate justifiable reliance.” Trefethen v. Liberty Mut. Grp., Inc., No. 11-CV-225-SM, 2013 U.S. Dist. LEXIS 76753, 2013 WL 2403314, at *7 (D.N.H. May 31, 2013)(quoting Van Der Stok v. Van Voorhees, 151 N.H. 679, 682, 866 A.2d 972 (2005)) (additional citations omitted).
Plaintiffs rely on Van Der Stok v. Van Voorhees, but that decision offers little support. That case arose [*25] out of a transaction for the sale of real estate. The plaintiff represented that defendant-purchaser would be able to build on the property, but did not disclose that his own earlier application to the zoning board for a permit to build on the property had been denied. After the closing, defendant went to the town offices to inquire about the property, and first learned that plaintiff’s earlier permit application had been denied. Defendant stopped payment on the check given at closing to cover the purchase price. The plaintiff subsequently filed an action, and defendant raised fraud in the inducement as a defense to plaintiff’s claims. Plaintiff argued the defendant could not show reasonable reliance on his purported misrepresentation, because the purchase and sale agreement provided, “Seller makes no representations as to land use law or regulations.” Id. at 682.
The New Hampshire Supreme Court rejected that argument for two reasons. First, the court was unconvinced that the disclaimer “would put a reasonable person on notice that he could not rely upon the specific representation made . . . that the particular lot he was buying was a buildable lot.” Id. at 683. Moreover, the plaintiff had “made a representation [*26] with knowledge of its falsity or with conscious indifference to the truth with the intention to cause another to rely upon it.” Id. (quoting Snierson v. Scruton, 145 N.H. 73, 77, 761 A.2d 1046 (2000)). Such “positive fraud,” the court stated, “vitiates every thing.” Id. (quoting Jones v. Emery, 40 N.H. 348, 350 (1860)).
This case is distinguishable from Van Der Stok because the Lizzols have not shown what representation defendant(s) allegedly made “with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it.” Id. In support of their assertion that defendants knew (or believed) that Walsh was likely to conduct their particular tour in an unsafe manner, plaintiffs point to the following: (1) “[u]pon information and belief, there had been complaints from customers that OBK’s tour guides, specifically Martin Welch, had driven unreasonably fast while conducting tours; (2) after the incident, the MVG manager asked Michael if Welch had been “driving too fast again.”
Admissibility of that evidence is doubtful, and it is plainly insufficient to support a finding that defendants knew that plaintiffs’ lesson and tour would be conducted in a negligent or actionably unsafe manner or were recklessly indifferent to that likelihood. And [*27] plaintiffs have identified no particular representation made by defendants, with the intention to induce plaintiffs to rely upon it, and, upon which they justifiably relied, that either proved to be false or the product of reckless indifference to the truth. The only statement in the record to which they point (Welch’s statement that he would not drive the snow machines faster than 20 miles per hour) occurred after plaintiffs signed the Release. The record is also utterly silent with respect to whether speed in excess of 20 mph is considered dangerous or negligent when conducting a snowmobile tour, or whether “too fast” in the past equates to the speed driven by the guide on plaintiffs’ tour, or even what “too fast” might mean in the context of a snowmobile tour that included novices.
Because plaintiffs have not produced sufficient evidence from which a finder of fact could conclude that the defendants knowingly made fraudulent representations to them, they have not established that a genuine issue of fact exists with respect to whether their execution of the Release was fraudulently induced, and is therefore ineffective.
The Release is valid and enforceable, and it encompasses the plaintiffs’ [*28] bystander liability claim as well as their negligence claims.
For the foregoing reasons, and for those argued in the defendants’ memoranda, the motion for summary judgment (document no. 23) is necessarily granted under controlling New Hampshire law. The Release at issue here is not ambiguous. It unmistakably released the defendants from any liability relating to their negligence, and that of their employees and agents. Neither qualifying language nor any other provision in, nor the structure of the Release, obscured the defendants’ intent to be relieved of all liability for their own negligence. A reasonable person would have understood that the Release relieved the defendants of all liability for injuries caused by their negligence. The Clerk of Court shall enter judgment for defendants and close the case.
/s/ Steven J. McAuliffe
Steven J. McAuliffe
United States District Judge
October 31, 2016
Release law is stretched in New Hampshire court to cover injuries from snowmobile driven by employee hitting the plaintiff on the ski slopes.
State: New Hampshire, Superior Court of New Hampshire, Hillsborough County
Plaintiff: Marcella McGrath f/k/a Marcella Widger
Defendant: NH Development, Inc. and John Doe
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the Defendant
The defendant is the owner of Crotched Mountain Ski Area in New Hampshire. The plaintiff signed an application for a season pass which included release language in the application. While skiing one day the plaintiff was hit by an employee of the defendant driving a snowmobile.
The defendants moved for summary judgment based on the release. The plaintiff objected stating the release violated public policy. The plaintiff also argued the parties, when the release was signed, did not contemplate the release would cover negligence claims.
The phrase “did not contemplate” is another way of saying there was no meeting of the minds. For a contract to be valid, the parties to the contract must understand the basic nature of the contract. There must be a meeting of the minds to the contract. This does not mean that all aspects of the contract must be contemplated by both parties, just that the major issues and purpose of the contract are understood.
Analysis: making sense of the law based on these facts.
The court reviewed the requirements for a release to be valid under New Hampshire law, which requires the release to:
…(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.
Then the court looked at each of the three requirements. The first, Public Policy in New Hampshire, means the parties did not have a special relationship and were not of disparity in bargaining power. This definition is the original definition of public policy.
Special relationship means where one party had no choice but to deal with the other party to obtain a necessary good or service.
A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”
A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way
Specifically, a special relationship exists between common carriers, innkeepers or public utilities and the public. A Monopoly that supplies goods or services that a person must have is an example of a defendant this definition would fit. Transportation, a place to stay and gas and electric providers have special relationships with the people they serve. This is the original definition of relationship that creates unequal bargaining power where releases are void.
The theory behind public policy was the state must step in to protect the common public from unscrupulous, overbearing or overreaching companies when the public had no choice but to deal with them. This relationship is based on the practical necessity of the goods or services they provide. Without them, life would not be possible or as possible.
Skiing in New Hampshire is not a practical necessity. You can live your life and never ski, in fact, many people do. On top of that the defendant was not the only ski area. Meaning the plaintiff could have gone to any number of other ski areas; the defendant did not force her to visit its ski area nor was she compelled to visit the defendant’s ski area. Consequently, there was no disparity of bargaining power because the plaintiff could have bargained with someone else or not gone skiing and still lived on.
The plaintiff also argued the release was a violation of public policy because it relieved the defendant of statutory compliance with a New Hampshire statute governing the use of snowmobiles. However, the court found the release did not affect the enforcement of the statute. The statute was one outlining the requirements for a state commissioner to make and enforce laws concerning snowmobiles. The release did not alter the commissioner’s ability to do so and would not alter any law or regulation made or the law or regulations affect.
If the release does not violate public policy, then the requirement two requires a review of whether or not the plaintiff or a reasonable person would have understood the exculpatory provisions in the release. For the plaintiff to argue that she did not understand the release, she would have to prove the language in the release was not understandable.
…therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”
The plaintiff did not deny she understood the release; she argued that the release did not cover the precise occurrence that gave rise to here injuries. Meaning the release did not cover injuries from being hit by a snowmobile being driven by an employee of the defendant. However, the law does not require a release to be specific in its language to cover the injury the plaintiff may later claim.
Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
The release language was broadly written to cover all types of injuries that could occur while skiing. New Hampshire also does not require “magic words” such as negligence to make the release valid or convey a specific risk to the signor.
In reviewing the language the court found the language was broad enough to cover the injury the plaintiff received.
As noted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.”
The final argument made by the plaintiff was the release did not contemplate a snowmobile accident because snowmobiles are not an inherent part of skiing.
In this case, the release did not refer to the inherent risks of skiing, but stated that skiing was a hazardous sport and that injuries are commonplace.
Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.
Consequently, the restrictions that the term inherent would have identified were not there, the language was broad enough to cover the accident the plaintiff complained of.
The case was dismissed based upon the defendant’s motion for summary judgment.
So Now What?
Use of the narrowing term inherent in the release when referring to the risks might have allowed the plaintiff to continue with her claim. Remember inherent is a restricting word and if used in this release, it might have excluded a snowmobile accident from the pool of possible claims. As the release was worded the snowmobile accident was covered.
The bigger issue is the attempt to spread the definition of Public Policy board enough that it would void this release. However, the court did not do that and kept the definition to the original definition that a release cannot protect those monopolies that provide a necessity to the public cannot use a release to limit their liability.
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