Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Julie A. Soderberg, Respondent, v. Lucas Anderson, Appellant.

No. A17-0827

Supreme Court of Minnesota

January 23, 2019

Court of Appeals Office of Appellate Courts

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

SYLLABUS

The doctrine of implied primary assumption of risk does not apply to a claim in negligence for injuries arising out of recreational downhill skiing and snowboarding.

Affirmed.

OPINION

LILLEHAUG, JUSTICE.

In 2016, a ski area outside Duluth, Spirit Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson, 906 N.W.2d 889 (Minn.App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”[1]Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg, 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790 (Minn.App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg, 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct “enlarged the inherent risks of skiing.” Id. at 893-94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id. at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. The doctrine of primary assumption of risk is part of our common law. Springrose v. Willmore, 192 N.W.2d 826, 827-28 (Minn. 1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary assumption of risk. Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose, 192 N.W.2d at 827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland, 812 N.W.2d 113, 120-21 (Minn. 2012); Springrose, 192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative defense”). Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly, 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose, 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'” Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974)); see Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk “is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty”).

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706 (Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707-08. We determined that the ball club was “bound to exercise reasonable care” to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided enough screened-in seating “for the most dangerous part of the grand stand.” Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 88 N.W.2d 94 (Minn. 1958), that a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with “a reasonable opportunity to view the participants from a safe area.” Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim, 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck, 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated that “[a]ny person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.” Id. at 455.[2]

We applied the doctrine to recreational figure skating in Moe v. Steenberg, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff” ‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo.Ct.App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121-22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.[3] To do so would relieve skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.[4] See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99 (Colo. 2016); Blackburn v. Dorta, 348 So.2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132-33 (La. 1988); Wilson v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905-06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 387 S.E.2d 511, 517-19 ( W.Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278, 1281-84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.[5]

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling,” ‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role-limited as it may be-for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied, [6] erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court of appeals’ disposition-reversal and remand-on a different ground.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.

———

Notes:

[1] Riding a snowboard “regular” means that the rider’s left foot is in the front of the snowboard, the rider’s right foot is in the back, and the rider is facing right. Riding “goofy” means that the rider’s right foot is in the front, the rider’s left foot is in the back, and the rider is facing left.

[2] In Diker v. City of St. Louis Park, 130 N.W.2d 113, 118 (Minn. 1964), and citing Modec, we stated the general rule of assumption of risk in hockey, but did not apply the rule to “a boy only 10 years of age.”

[3] In Peterson, the court of appeals affirmed the decision of the district court, which granted summary judgment to a defendant on the plaintiff’s negligence claim stemming from a collision between the two on a ski hill. 733 N.W.2d at 791. Based on other decisions in which “courts have applied primary assumption of the risk to actions between sporting participants,” the court of appeals held that “primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.” Id. at 792-93.

[4] That reluctance is also reflected in another case decided today, Henson v. Uptown Drink, LLC, N.W.2d (Minn. Jan. 23, 2019), in which we decline to extend the doctrine of implied primary assumption of risk to the operation and patronage of bars.

[5] Spirit Mountain (like many ski operators) relies on the doctrine of express primary assumption of risk. It requires patrons to execute forms and wear lift tickets whereby patrons expressly assume all risks of injury and release their legal rights.

[6] Based on our decision here, the court of appeals’ decision in Peterson, 733 N.W.2d 790, holding that implied primary assumption of risk applies to collisions between skiers, is overruled.

 


Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427

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

OPINION

ORDER

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).

Background

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.

Discussion

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.

Conclusion

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.

SO ORDERED.

/s/ Steven J. McAuliffe

Steven J. McAuliffe

United States District Judge

October 31, 2016

 


Oregon Recreational Use Statute used by US Forest Service to stop claim by injured snowmobiler

Case does an excellent job of explaining the requirements that must be met to support a motion to dismiss.

Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

State: Oregon, United States District Court for the District of Oregon

Plaintiff: Daniel T. Stringer

Defendant: US Forest Service, United States Department of Agriculture,

Plaintiff Claims:

Defendant Defenses: Recreational Use Statute

Holding: For the Defendant

Year: 2014

The plaintiff was with a group of people who rented snowmobiles and then drove them to the Deschutes National Forest. The plaintiff started to go snowmobiling with a group. On their way there the plaintiff took off across a field that was not with the other members of the group.

The plaintiff’s snowmobile went over a 15’ embankment where he suffered injuries.

The plaintiff sued the defendant US Forest Service for his injuries. This is the motion to dismiss the plaintiff’s complaint because of the Oregon Recreational Use Statute.

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

The court started by explaining in detail the steps necessary to dismiss a complaint on a Rule 12(b)(6) Motion to Dismiss.

To begin with a “complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” A claim is plausible when “the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct.” The factual allegations must present more than the “the mere possibility of misconduct.”

While considering a motion to dismiss, the Court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.”

Consequently the court can dismiss a claim when the court finds the facts, even if pleading more than simple claim of injury do not support the necessary steps to prove the plaintiff’s claim. The plaintiff’s complaint requires more than mere allegations.

The first issue was whether the United States could use a state statute as a defense to a claim.

The liability of the United States is determined “in the same manner and to the same extent as a private individual in like circumstances.” Because plaintiff’s accident occurred in Oregon, this action is governed by Oregon law.

The court then looked at the Oregon Recreational Use Statute, ORS § 105.682. Like most recreational use statutes, a landowner is not liable for injuries if they do not charge for the use of their land.

The plaintiff argued that because the defendant charged for use of the land at other locations in the Deschutes Forest the defendant, Forest Service could not rely on the recreational use statute. Here the US Forest Service charged to use the land to ski and to camp. However, the plaintiff was not camping or skiing, nor whether they are engaging in an activity at the location where fees are charged to ski or camp.

A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.

There must be some relationship between the fee charged and the activity which the plaintiff engaged in which caused his injury.

So Now What?

This case lays out an easy analysis to understand the requirements to win a motion to dismiss. Motions to dismiss are usually filed prior to the answer of the defendant being filed and are done so when the plaintiff’s claim fails in all respects to present any evidence which the court can find to support the claims of the plaintiff.

If the motion to dismiss is not granted the defendant is instructed to file their answer and discovery begins. After or during discovery, one or more of the parties can file a motion for summary judgment. A motion for summary judgment is normally how a case is dismissed prior to trial. Motions to dismiss are rarely granted.

In this case, the next motion would have probably been based on the fact the plaintiff assumed the risk by taking off, off the trail when he crashed.

This is also instructional in showing the defendant United States through any of its land-management agencies, Bureau of Land Management, National Park Service, US Forest Service, Bureau of Reclamation or US Fish & Wildlife Service.

What do you think? Leave a comment.

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Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

Daniel T. Stringer, Plaintiff, v. United States Department of Agriculture (Forest Service), Defendant.

Civ. No. 6:13-cv-1902-MC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

2014 U.S. Dist. LEXIS 150168

October 21, 2014, Decided

October 21, 2014, Filed

COUNSEL: [*1] For Daniel T Stringer, Plaintiff: J. Randolph Pickett, LEAD ATTORNEY, Pickett Dummigan Rhodes, LLP, Portland, OR; Matthew D. Kaplan, Matthew D. Kaplan, LLC, Portland, OR; R. Brendan Dummigan, Pickett Dummigan Rhodes, LLP, Portland, OR; Kristen C. West, Pickett Dummigan, LLC, Portland, OR.

For United States Department of Agriculture Forest Service, Defendant: James E. Cox, Jr., LEAD ATTORNEY, U.S. Attorney’s Office, Portland, OR.

JUDGES: Michael J. McShane, United States District Judge.

OPINION BY: Michael J. McShane

OPINION

OPINION AND ORDER

MCSHANE, Judge:

Plaintiff Daniel Stringer was injured while snowmobiling in the Deschutes National Forest. The United States Forest Service (Forest Service), which manages the Deschutes National Forest, allows members of the public to snowmobile on approximately 600 miles of trail within the forest free of charge.

The Court is asked to consider whether the Forest Service waived sovereign immunity under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. Because Stringer neither paid a “charge” nor engaged or intended to engage in an activity subject to a “charge,” this Court finds that the Forest Service did not waive its immunity. Thus, defendant’s motion to dismiss, ECF No. 10, is GRANTED. [*2]

PROCEDURAL AND FACTUAL BACKGROUND

This action arises out of a snowmobile accident occurring in the Deschutes National Forest. On March 24, 2012, Stringer, along with five companions, rented five snowmobiles at a rental facility in Bend, Oregon. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1. After receiving a 15-minute training tutorial, the group traveled to Wanoga Sno-Park. Decl. of James E. Cox, Jr. 2, ECF No. 13-3. Wanoga Sno-Park, a snowmobiling park located within the Deschutes National Forest between Bend and Mount Bachelor, is open to the public free of charge.1 See Decl. of Kevin W. Larkin 2-3, 5 ECF No. 11.

1 The state of Oregon does charge a $5 vehicle parking fee to park in the Wanoga Sno-Park parking lot. See Compl. 2-3, ECF No. 1; OREGON DEP’T OF TRANSP.,OREGON.GOV: SNO-PARK PARKING PERMITS, http://www.oregon.gov/ODOT/DMV/pages/vehicle/sno_park_permits.aspx(last visited Oct. 20, 2014).

At approximately 10 a.m., Stringer and his group departed on snowmobile trail #5 heading west toward Elk Lake Resort. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer operated a two person sled accompanied by his fiancee, Danielle McBurnett. Compl. 3, ECF No. 1. Between 11:30 a.m. and 11:45 a.m., the group arrived at Elk Lake Resort. Decl. of [*3] James E. Cox, Jr. 5, ECF No. 13-1. After a brief break, the group decided to postpone lunch and return to Wanoga Sno-Park on snowmobile trail #5 heading east. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1.

At approximately 12:50 p.m., the group approached a bridge at Falls Creek. See Decl. of James E. Cox, Jr. 1, ECF No. 13-1. Stringer, accompanied by McBurnett, sped up and pulled away from the group. Id. at 5. As he pulled away, Stringer left the trail and cut across an open meadow. Compl. 3, ECF No. 1. Realizing that the meadow led to an embankment of Falls Creek, Jessi Davis, a member of the snowmobiling group, sped up in an unsuccessful attempt to warn Stringer. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer’s snowmobile launched over the creek and crashed into the far embankment head-on. Compl. 3, ECF No. 1. Stringer and McBurnett fell approximately 15 feet to the bottom of the ravine; resulting in extensive injuries. Id. at 3, 5. Stringer now seeks damages under the FTCA. Id. at 6.

STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim is plausible on its face when [*4] the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.

While considering a motion to dismiss, the Court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations and internal quotation marks omitted).

DISCUSSION

Plaintiff, in reliance on Coleman v. Oregon Parks & Recreation Dep’t, 347 Or. 94, 217 P.3d 651 (2009), contends that defendant waived sovereign immunity under the FTCA by making a “charge” under ORS §§ 105.672(1)(a), 105.688(3). In response, defendant contests plaintiff’s interpretation of Coleman and argues that a charge was not made, and even if made, Wanoga Sno-Park is specific, separate, and distinct from any land that made such a charge.

The FTCA waives the sovereign immunity of the United States for claims based on the negligence of United States employees. 28 U.S.C. § 1346(b)(1); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995). The liability of the United [*5] States is determined “in the same manner and to the same extent as a private individual in like circumstances.” 28 U.S.C. § 2674. Because plaintiff’s accident occurred in Oregon, this action is governed by Oregon law. 28 U.S.C. § 1346(b)(1); Yanez, 63 F.3d at 872.

As stated in ORS § 105.676, “it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes . . . by limiting their liability toward persons entering thereon for such purposes . . . .” ORS § 105.6822 advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.” Coleman, 347 Or. at 97.

2 ORS § 105.682 provides:

(1) Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational [*6] purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(2) This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

ORS § 105.688, however, limits the immunity provided in ORS § 105.682. ORS § 105.688 provides, in relevant part:

(3) Except as provided in subsection[] (4) . . . of this section, the immunities provided . . . do not apply if the owner makes any charge3 for permission to use the land for recreational purposes . . . .

(4) If the owner charges for permission to use the owner’s land for one or more specific recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section,4 the immunities . . .apply to any use of the land other than the activities for which the charge is imposed. If the owner charges for permission to use a specified part of the owner’s land for recreational [*7] purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities . . . apply to the remainder of the owner’s land.

3 ORS § 105.672(1)(a) defines “Charge” as “the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.” This definition excludes “the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.” ORS § 105.672(1)(c).

4 ORS § 105.688(8) provides:

(8) Notices . . . may be given by posting, as part of a receipt, or by such other means as may be reasonably calculated to apprise a person of:

(a) The limited uses of the land for which the charge is made, and the immunities provided under ORS 105.682 for other uses of the land; or

(b) The portion of the land the use of which is subject to the charge, and the immunities provided under ORS 105.682 for the remainder of the land.

Plaintiff contends that, under Coleman, defendant waived immunity by charging “a fee for any use of the land.” P1.’s Resp. to Def.’s Mot. to Dismiss 5, ECF No. 15 (emphasis in original). Specifically, plaintiff argues that because defendant charged third-parties5 a camping fee or a ski-lift fee within the Deschutes National Forest, defendant [*8] waived recreational immunity as to plaintiff’s injury occurring in that same forest. Id. at 5-8. This Court looks to Coleman.

5 Neither plaintiff nor any member of his snowmobiling group paid a camping fee or purchased a ski-lift ticket.

In Coleman, plaintiffs Bradley and Bonnie Coleman arrived at William M. Tugman State Park (Tugman Park) intending to camp overnight. 347 Or. at 96; Coleman v. Oregon Parks & Recreation Dep’t (Coleman App. Ct.), 221 Or. App. 484, 486, 190 P.3d 487 (2008), rev’d, 347 Or. 94, 217 P.3d 651 (2009). At that time, Tugman Park charged a fee for campsite and gazebo rental, but was otherwise open to the public free of charge. Coleman, 347 Or. at 96. Bradley, having arrived at the campsite, decided to explore the park with a friend on their mountain bikes. Coleman, 347 Or. at 96; Coleman App. Ct., 221 Or. App. at 486. While on a designated trail, Bradley rode his bike off a connected bridge, which lacked a ramp on one side. Coleman App. Ct., 221 Or. App. at 486.

The Supreme Court, in a four-to-three decision, denied defendant’s motion for summary judgment and concluded that defendant “did not establish that it made ‘no charge for permission to use’ Tugman Park.” Coleman, 347 Or. at 104. The Court further provided:

To be entitled to immunity, the landowner must make no charge for permission to use the land. If the landowner makes a charge for permission to use the its land, immunity does not apply, even if the injured person is not engaged in the use that was [*9] the basis for the charge at the time of injury. So, as in this case, if the landowner makes a charge to use a park for camping, the landowner forfeits its immunity, even if a camper is injured while biking.

Id. at 102-103 (emphasis in original). Plaintiff, in reliance on an excerpt from this quoted material, seeks to extend Coleman to the current action. This Court declines to do so.

The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. Decl. of Kevin W. Larkin 2, ECF No. 11. A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.6 See Hannon v. United States, 801 F. Supp. 323, 327 (E.D. Cal. 1992) (“The fact that somewhere else in the Inyo National Forest someone other than the plaintiff is charged for services does not negate the immunity defense throughout the Forest.”). As articulated in Coleman, there must be some requisite relationship between the fee charged and the injured plaintiff. 347 Or. at 103-104 (“As campers, plaintiffs were entitled to use all of Tugman Park, including its bike trials . . . . The state also did not establish that [*10] as a camper, plaintiffs’ use was limited to the piece of land associated with the charge.”) (emphasis added); see also Colin v. United States, No. C-99-5045 EDL, 2001 WL 776998, at *12 (N.D. Cal. May 17, 2001) (awarding summary judgment to defendant where “Plaintiff and his companions paid no fee to obtain access to the lake, either directly or indirectly”).7

6 The Coleman Court was presented with an analogous hypothetical:

Why, queries the state, would the legislature preclude recreational immunity for the owner of a 100-acre property that charged to use an equestrian riding center located on 10 acres of that land, but made 90 acres available to the public for free, when the plaintiff was injured hiking on the separate and distinct 90 acres?

347 Or. at 103. The Court declined to address the hypothetical, but indicated that “the land” as used in ORS § 105.688(2)(a) (amended 2009 and 2010), “may refer to a specific, separate, and distinct piece of real property.” Id.

7 In Colin, plaintiff was injured while diving into Lake Sonoma. 2001 WL 776998, at *1. At that time, the United States charged fees for overnight camping and boat launching. Id. at *11. Plaintiff, however, only engaged in activities that were free of charge: “day use of the swimming and picnic facilities.” [*11] Id.

Stringer, unlike the Colemans, lacked this requisite relationship. Stringer was neither a camper nor a skier;8, he was a snowmobiler. As a snowmobiler, Stringer engaged in an activity not subject to a “charge” under ORS § 105.672(1)(a). This conclusion is further supported by Justice Balmer’s dissenting opinion. In that opinion, Justice Balmer explained:

[U]nder the majority’s reasoning, if a person decided to rent a campsite (or to rent the gazebo), the state may not assert recreational immunity as to injuries suffered by that person while riding on a bike trial, but the state may assert such immunity as to a person who does not rent a campsite and who incurs an identical injury in an identical place on the land.

Coleman, 347 Or. at 109 (Balmer, J., dissenting). Stringer, like the dissent’s hypothetical non-camping bicyclist, is subject to recreational immunity. Had Stringer been either a camper or a skier, the state may have waived recreational immunity under ORS § 105.688. However, that factual scenario is not before this Court.

8 This Court reserves judgment as to whether either the camping fee or ski-lift fee qualify as “charges” under ORS § 105.672(1)(a).

CONCLUSION

For these reasons, defendant’s motion to dismiss, ECF No. 10, is GRANTED.

IT IS SO ORDERED.

DATED [*12] this 21st day of October, 2014.

/s/ Michael J. McShane

Michael J. McShane

United States District Judge


Oregon Recreational Use Statute

Oregon Statutes

Title 10. PROPERTY RIGHTS AND TRANSACTIONS

Chapter 105. Property Rights

PUBLIC USE OF LANDS

Current through 2015 Regular Session, Acts 2 through 49, 51 through 187, 189 through 204, 206 through 217, 222, and 228 through 241

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way. 1

§ 105.672. Definitions for ORS 105.672 to 105.696. 3

§ 105.676. Public policy. 3

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products. 4

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights. 4

§ 105.699. Rules applicable to state lands. 5

§ 105.700. Prohibiting public access to private land; notice requirements; damages. 5

 

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way

(1)       As used in this section:

(a)             “Structures” means improvements in a trail, including, but not limited to, stairs and bridges, that are accessible by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.

(b)             “Unimproved right of way” means a platted or dedicated public right of way over which a street, road or highway has not been constructed to the standards and specifications of the city with jurisdiction over the public right of way and for which the city has not expressly accepted responsibility for maintenance.

(2)       A personal injury or property damage resulting from use of a trail that is in a public easement or in an unimproved right of way, or from use of structures in the public easement or unimproved right of way, by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance does not give rise to a private claim or right of action based on negligence against:

(a)             A city with a population of 500,000 or more;

(b)             The officers, employees or agents of a city with a population of 500,000 or more to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in a city with a population of 500,000 or more; or

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in a city with a population of 500,000 or more.

(3)       Notwithstanding the limit in subsection (2) of this section to a city with a population of 500,000 or more, by adoption of an ordinance or resolution, a city or county to which subsection (2) of this section does not apply may opt to limit liability in the manner established by subsection (2) of this section for:

(a)             The city or county that opts in by ordinance or resolution;

(b)             The officers, employees or agents of the city or county that opts in to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in the city or county that opts in by ordinance or resolution; and

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in the city or county that opts in.

(4)       The immunity granted by this section from a private claim or right of action based on negligence does not grant immunity from liability:

(a)             Except as provided in subsection (2)(b) or (3)(b) of this section, to a person that receives compensation for providing assistance, services or advice in relation to conduct that leads to a personal injury or property damage.

(b)             For personal injury or property damage resulting from gross negligence or from reckless, wanton or intentional misconduct.

(c) For an activity for which a person is strictly liable without regard to fault.

§ 105.672. Definitions for ORS 105.672 to 105.696

As used in ORS 105.672 to 105.696 :

(1)       “Charge”:

(a)             Means the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.

(b)             Does not mean any amount received from a public body in return for granting permission for the public to enter or go upon the owner’s land.

(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.

(2)       “Harvest” has that meaning given in ORS 164.813.

(3)       “Land” includes all real property, whether publicly or privately owned.

(4)       “Owner” means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.

(5)       “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.

(6)       “Special forest products” has that meaning given in ORS 164.813.

(7)       “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.

Cite as ORS 105.672

History. 1995 c.456 §1; 2007 c. 372, §1; 2009 c. 532, §1; 2010 c. 52, § 1

§ 105.676. Public policy

The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, for gardening, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

Cite as ORS 105.676

History. 1995 c.456 §2; 2009 c. 532, §3

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products

(1)       Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(2)       This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

Cite as ORS 105.682

History. 1995 c.456 §3; 2009 c. 532, §4

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights

(1)       An owner of land who either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.

(2)       The fact that an owner of land allows the public to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products without posting, fencing or otherwise restricting use of the land does not raise a presumption that the landowner intended to dedicate or otherwise give over to the public the right to continued use of the land.

(3)       Nothing in this section shall be construed to diminish or divert any public right to use land for recreational purposes acquired by dedication, prescription, grant, custom or otherwise existing before October 5, 1973.

(4)       Nothing in this section shall be construed to diminish or divert any public right to use land for woodcutting acquired by dedication, prescription, grant, custom or otherwise existing before October 3, 1979.

Cite as ORS 105.692

History. 1995 c.456 §5; 2009 c. 532, §5

§ 105.699. Rules applicable to state lands

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

Cite as ORS 105.699

History. 1979 c.434 §8; 1995 c.456 §7

§ 105.700. Prohibiting public access to private land; notice requirements; damages

(1)             In addition to and not in lieu of any other damages that may be claimed, a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:

(a)             The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and

(b)             The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.

(2)       A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:

(a)             For land through which the public has no right of way, the landowner or agent must place a notice at each outer gate and normal point of access to the land, including both sides of a body of water that crosses the land wherever the body of water intersects an outer boundary line. The notice must be placed on a post, structure or natural object in the form of a sign or a blaze of paint. If a blaze of paint is used, it must consist of at least 50 square inches of fluorescent orange paint, except that when metal fence posts are used, approximately the top six inches of the fence post must be painted. If a sign is used, the sign:

(A)       Must be no smaller than eight inches in height and 11 inches in width;

(B)       Must contain the words “Closed to Entry” or words to that effect in letters no less than one inch in height; and

(C)       Must display the name, business address and phone number, if any, of the landowner or agent of the landowner.

(b)             For land through which or along which the public has an unfenced right of way by means of a public road, the landowner or agent must place:

(A)       A conspicuous sign no closer than 30 feet from the center line of the roadway where it enters the land, containing words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____ MILES”; or

(B)       A sign or blaze of paint, as described in paragraph (a) of this subsection, no closer than 30 feet from the center line of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders the land, except that a blaze of paint may not be placed on posts where the public road enters the land.

(3)       Nothing contained in this section prevents emergency or law enforcement vehicles from entering upon the posted land.

(4)       An award of liquidated damages under this section is not subject to ORS 31.725, 31.730 or 31.735.

(5)       Nothing in this section affects any other remedy, civil or criminal, that may be available for a trespass described in this section.

Cite as ORS 105.700

History. 1999 c.933 §1