Finken v. USA Cycling, Inc., 2020 U.S. Dist. LEXIS 97928

Finken v. USA Cycling, Inc., 2020 U.S. Dist. LEXIS 97928

United States District Court for the District of Utah

June 3, 2020, Decided; June 3, 2020, Filed

Civil No. 1:17-cv-79

Counsel:  [*1] For Gerald Finken, Plaintiff: P. Matthew Muir, LEAD ATTORNEY, Lesley A. Manley, JONES WALDO HOLBROOK & MCDONOUGH, SALT LAKE CITY, UT.

For USA
Cycling, Defendant: Robert L. Janicki, LEAD ATTORNEY, Lance H. Locke, STRONG & HANNI, SANDY, UT.

For Ogden Weber Convention Visitors Bureau, Ogden/Weber Convention & Visitors Bureau, Defendants: Lloyd R. Jones, LEAD ATTORNEY, LAW OFFICE OF LLOYD R JONES, OKLAHOMA CITY, OK.

For Breakaway Promotions, LLC, Defendant: Dennis R. James, LEAD ATTORNEY, MORGAN MINNOCK RICE & MINER, SALT LAKE CITY, UT.

Judges: Clark Waddoups, United States District Judge. Magistrate Judge Paul M. Warner.

Opinion by: Clark Waddoups

Opinion

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Plaintiff Gerald Finken entered the 2014 USA
Cycling Masters Road Championship race. On August 25, 2014, Finken did a pre-ride of the course using the map published for the race. As he came around a turn on the route, he saw a concrete barrier blocking the road. Finken attempted to swerve around it, but crashed and suffered serious neck and back injuries. He has filed suit against USA Cycling, Inc. and Breakaway Promotions, LLC for negligently failing to warn riders about the barricade. Defendants have moved for summary judgment [*2]  on the ground that Finken signed a waiver of liability. For the reasons stated below, the court denies the motions for summary judgment.

FACTUAL BACKGROUND

The 2014 USA
Cycling Masters Road Championship race (“2014 Championship”) was held in Weber County, Utah on September 3-7, 2014. “USA
Cycling is the national governing body for the sport of cycling in the United States of America and was responsible for conducting the 2014 Championships.” Amended Complaint, ¶ 11 (ECF No. 20); USA
Cycling Answer, ¶ 11 (ECF No. 30). It entered into an Independent Contractor Agreement with Breakaway Promotions, LLC (“Breakaway”), where Breakaway agreed to perform multiple duties, including implementing the “course design and layout for each race course as well as start and finish areas.” Breakaway Agmt., ¶ 7 (ECF No. 56-7). Breakaway also agreed to be responsible for “[a]ll organization and course safety evaluations for each race venue.” Id. Breakaway further agreed to supply information “for the race Technical Guide” and contracted that such information would be “precise and accurate[].” Id.
USA
Cycling retained the responsibility, however, to publish the Technical Guide “in a reproducible format that [*3]  [could] be printed or sent digitally.” Id. The Technical Guide included maps and course route information.
1
USA
Cycling Depo., 33:19-35:1 (ECF No. 38-5) (given by Charles R. Hodge).

Before publication, USA
Cycling typically reviewed maps to ensure compliance with its rules. Leif Depo., 9:24-10:10 (ECF No. 45-1). Once a map “was approved, [it] would post it online and make it part of the event materials.” Id. 10:10-14. “One of the purposes of posting” the map online was so “participants or prospective participants [could] see . . . where the course [was to be] located.” Id. at 10:15-20. Chad Sperry, the owner of Breakaway, asserts Breakaway prepared “a preliminary map” for USA
Cycling to review, and then “USA
Cycling created their own map for the technical guide and to post online of this particular race course.” Sperry Depo., 30:4-17 (ECF No. 56-8). USA
Cycling disputes it prepared the map. Id. at 30:18-23; Leif Depo., 11:1-5 (ECF No. 45-1).

Part of the route for the race went along State Road 226, which is known as the Old Snowbasin Road. Prior to “submit[ing] the course layout to USA
Cycling for the event,” Breakaway knew a portion of the road was closed near the Ard Nord Trailhead. [*4]  Sperry Depo., 20:10-14, 23:1-3 (ECF No. 56-8). A concrete barricade had been placed across the road due to the road’s condition beyond the barricade. Id. at 21:2-6, 22:16-20. The plan was to have the barricade removed after the road was repaired for the race. Id. at 26:21-23. No warnings about the road closure were noted when the course map was posted for participants to view.

Sperry did a site visit in early August 2014, and saw the concrete barriers were still in place at that time. Id. at 22:9-15, 23:8-11. Additionally, Rachel Leif, USA
Cycling‘s National Events Manager, also learned prior to the race that a portion of the road was closed. Leif Depo., 12:22-24 (ECF No. 45-1). “[A] concerned masters rider” sent an email to USA
Cycling, which contained photographs of the route, including a picture of the concrete “barriers across the road and a ‘Road Closed’ sign.” Id. at 14:1-19, 15:3-5. The Vice President of National Events, Micah Rice, forwarded the email to Sperry on August 5, 2014, and copied Leif on it. Id. at 14:18-22, 39:24-40:2. “[B]y August 5th or 6th, 2014, [Leif] understood the road was closed.” Id. at 15:10-13. Although she “was the point person,” and knew she was viewing [*5]  pictures of the racecourse, she did not take action to notify participants of the road closure at that time. See id. at 13:11-17, 15:6-9, 16:13-22. Her conversations with participants pertained only to potholes that needed to be fixed in the road. Id. at 17:14-18. This is so even though Leif knew that “race participants will often pre-ride a course to prepare.” Id. at 30:3-10. Similarly, Sperry took no action to notify participants about the closure. Sperry Depo., at 40:10-25 (ECF No. 56-8).

On August 25, 2014, Finken did a pre-ride of the course using the map provided by USA
Cycling. Finken Depo., 60:5-7, 63:6-16 (ECF No. 38-3). Finken alleges he rode the route cautiously during his pre-ride due to his lack of knowledge about the course and wet road conditions. Id. at 68:8-25. Nevertheless, as he came around a turn and saw the concrete barriers across the road, he “locked up the brakes” but was not able to stop. Id. at 78:18-79:12. He attempted to swerve onto a worn path beside the barrier, but his handlebars and left hand struck the barrier. Id. at 77:10-16, 80:7-12, 82:24-83:21. Finken became airborne and landed on his right side. Id. at 82:4-5, 83:25-84:2. He was hospitalized for [*6]  two days for serious neck and back injuries. Id. at 107:16-108:25.

After the accident, USA
Cycling modified the Technical Guide to warn participants doing a pre-ride that a portion of the route was closed and would remain closed until the day before the event. Leif Depo., 24:23-25:3, 26:3-7, 27:9-21. Finken contends Breakaway and USA
Cycling were negligent in not giving that warning sooner. Both defendants contend, however, they cannot be liable for negligence because Finken signed a pre-injury waiver entitled, “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant not to Sue” (the “Waiver”).

Finken registered for the race on or about July 27, 2014. Order Summary, at 4 (ECF No. 45-1). Part of that registration required Finken to sign the Waiver. Finken does not recall seeing or signing the Waiver, but for purposes of these summary judgment motions, it is undisputed that he signed it. The Waiver is broad. It notes “that cycling is an inherently dangerous sport” and includes dangers such as “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” Waiver, 2 (ECF No. 56-6) (emphasis omitted). It further notes “the possibility of serious [*7]  physical and/or mental trauma or injury, or death associated with the event.” Id.
Finken agreed to “waive, release, discharge, hold harmless, and promise to indemnify and not to sue” USA
Cycling and specified others for “any and all rights and claims including claims arising from [their] own negligence.” Id. (emphasis omitted). Finken also agreed to release “all damages which may be sustained by [him] directly or indirectly in connection[] with, or arising out of, [his] participation in or association with the event, or travel to or return from the event.” Id.

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

“Summary judgment is proper if the movant demonstrates that there is ‘no genuine issue as to any material fact’ and that it is ‘entitled to judgment as a matter of law.'” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (quoting Fed. R. Civ. P. 56(c)). The defendants’ motions seek summary judgment based on the terms of a preinjury waiver. The parties have applied Utah law to address the claims in this case.

II. WAIVER AND INDEMNITY AGREEMENTS

In Utah, “[i]t is well settled that preinjury releases of claims for ordinary negligence can be valid and enforceable.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984 (citation omitted). “Indeed . . . the majority of jurisdictions” permit “people to surrender their rights [*8]  to recover in tort for the negligence of others.” Id. (citations omitted). This does not mean, however, that preinjury waivers are favored. Rather, “the shortcomings of exculpatory clauses . . . provide ample cause to approach preinjury releases with caution.” Berry v. Greater Park City Co., 2007 UT 87, ¶ 11, 171 P.3d 442, overruled in part by Penunuri, 2017 UT 54, ¶¶ 22, 27, 423 P.3d 1150. Thus, not all preinjury waivers are valid. “Specifically, (1) releases that offend public policy are unenforceable; (2) releases for activities that fit within the public interest exception are unenforceable; and (3) releases that are unclear or ambiguous are unenforceable.” Penunuri, 2013 UT 22, ¶ 25, 301 P.3d 984 (quotations and citations omitted).

As to indemnification provisions, “[i]n general, the common law disfavors agreements that indemnify parties against their own negligence because one might be careless of another’s life and limb, if there is no penalty for carelessness.” Hawkins v. Peart, 2001 UT 94, ¶ 14, 37 P.3d 1062 (quotations and citation omitted). “Because of this public safety concern,” Utah court’s “strictly construe indemnity agreements against negligence.” Id. (citation omitted).

A. Clarity of the Waiver

“Preinjury releases, to be enforceable, must be communicated in a clear and unequivocal manner.” Pearce v. Utah Athletic Found., 2008 UT 13, ¶ 22, 179 P.3d 760, 767, overruled in part by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶¶ 22, 27, 423 P.3d 1150, (quotations and citations omitted). The Utah [*9]  Supreme Court has stated, “[t]o be effective, a release need not achieve perfection . . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.” Id. (quotations and citation omitted). Whether a contract is facially ambiguous is a question of law. Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269 (citation omitted). If there is ambiguity as to the intent of the parties, that is a question of fact requiring admission of parol evidence. Id. (citation omitted). In this case, however, the court only addresses facial ambiguity because if the Waiver is not clear on its face, it is unenforceable.

i. USA
Cycling

The Waiver has clear language releasing USA
Cycling from negligence. What is less clear is negligence from what activity? The Waiver notes “that cycling is an inherently dangerous sport” due to such dangers as “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” Waiver, at 2 (ECF No. 56-6) (emphasis added). It further notes “the possibility of serious physical and/or mental trauma or injury, or death associated with the event.” Id. (emphasis added). These provisions appear to provide notice about the event itself and [*10]  the dangers that may arise from it. Finken‘s injuries, however, arose from a pre-ride. When a map is published of a racecourse on a public road, one reasonably anticipates that road is open to travel. Although both defendants knew the road was closed until the race, they did not inform participants of that fact. Thus, they exposed pre-riders to a risk that is not inherent in a race on a public road. See Rutherford v. Talisker Canyons Fin., Co., LLC, 2019 UT 27, ¶¶ 19, 79, 445 P.3d 474 (citation omitted) (noting inherent risks are those that are an essential characteristic of a sport and “cannot be alleviated by the use of reasonable care” by an operator).

The Waiver goes on to state, however, that it releases “all damages which may be sustained by [Finken] directly or indirectly in connection[] with, or arising out of, [his] participation in or association with the event, or travel to or return from the event.” Id. (emphasis added). The only reason Finken was on the Old Snowbasin Road was in preparation for the event. His pre-ride therefore was in connection with his participation in that 2014 Championship race. Accordingly, the court concludes the Waiver was clear as to USA
Cycling.

ii. Breakaway

Breakaway contends the waiver also applied to it because it releases [*11]  “USA
Cycling‘s Event Directors, Affiliates, Agents, and Officials.” Mem. in Supp., at 14 (ECF No. 56). While the Waiver does release those persons, Breakaway has not specified which of those it was. It has failed to show it was an event director, affiliate, agent, or official.

The Waiver was USA
Cycling‘s waiver, and it appears to protect those persons directly affiliated with USA
Cycling. Based on Leif’s title as National Event Manager and Rice’s title as Vice President of National Events, the “Event Directors” may reference them and not Breakaway. The term is not defined in the Waiver and is too ambiguous for the court to conclude the Waiver is sufficiently clear on its fact to apply to Breakaway.

Breakaway entered an Independent Contractor Agreement that specifies it was “not an employee, or servant of” USA
Cycling. Breakaway Agmt., ¶ 2 (ECF No. 56-7). The agreement further specifies that Breakaway would “be solely and entirely responsible for its acts, and for the acts of independent contractor’s agents, employees, servants and subcontractors during the performance of this agreement.” Id. ¶ 3 (emphasis omitted). Nowhere in the agreement does it identify Breakaway as an event director, [*12]  or as an affiliate, agent, or official of USA
Cycling.

Because the Waiver does not clearly and unambiguously extend to Breakaway as an independent contractor, the court concludes Finken‘s claim against Breakaway is not barred67 c x.

B. Public Interest Exception

The public interest exception invalidates a preinjury release when “it attempts to limit liability for activities in which there is a strong public interest.” Berry, 2007 UT 87, ¶ 12, 171 P.3d 442. The Utah Supreme Court has adopted the six factors stated in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963) to determine if the public interest exception applies. Pearce, 2008 UT 13, ¶ 17, 179 P.3d 760 (citations omitted). For recreational activities, however, it has gone one step further. In Pearce, the Court “join[ed] other states in declaring, as a general rule, that recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.” Id. at ¶¶ 18, 21.

As stated above, Finken‘s pre-ride was done in connection with his expected participation in the 2014 Championship. Because the event and the pre-ride were recreational activities, the court concludes the public interest exception is inapplicable in this case.

C. Public Policy Exception

Finken [*13]  further contends the Waiver is unenforceable because it is contrary to public policy. “To determine whether a contract offends public policy,” a court must “first determine whether an established public policy has been expressed in either constitutional or statutory provisions or the common law.” Penunuri, 2013 UT 22, ¶ 26, 301 P.3d 984. The Utah Supreme Court also has stated, “for a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.” Id. (quotations, citation, and alteration omitted). Thus, this exception should be applied, “if at all, only with the utmost circumspection.” Id. (quotations and citation omitted).

i. Penunuri Analysis – Equine Act

In Penunuri, the Utah Supreme Court addressed whether Utah’s Equine and Livestock Activities Act made certain preinjury waivers unenforceable as a matter of public policy. The waiver at issue in Penunuri, noted “that horseback riding involves significant risk of serious personal injury, and that there are certain inherent risks associated with the activity . . . that may result in injury, harm, or death to persons on or around them.” Id. at ¶ 3 (quotations omitted).

Utah’s Equine Act specifies “equine [*14]  activity sponsors are not liable for injuries caused by the ‘inherent risks’ associated with equine activities.” Id. at ¶ 9 (citing Utah Code Ann. § 78B-4-202)). The same section also specifies, however, that a sponsor may be liable if an injury results from actions of the sponsor. Utah Code Ann. § 78B-4-202(2). The plaintiff argued the Legislature struck a balance as a matter of public policy by removing liability for inherent risks but keeping liability for negligent actions. She asserted the balancing of interests was similar to the Court’s analysis in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560. Thus, she argued any waiver barring recovery from a sponsor who was negligent was contrary to public policy. The Court disagreed.

It found the Equine Act did not have a public policy statement like Utah’s Inherent Risk of Skiing Act addressed in Rothstein. Id. at ¶ 24. When the Legislature eliminated liability for the inherent risks of horseback riding, it did “not explain the motivation behind” that decision. Id. at ¶ 32. Nor did the Equine Act note the economic importance of the activity for the State. Most importantly, it lacked the central purpose of the Skiing Act to “permit equine sponsors to purchase insurance at affordable rates.” Id. at ¶ 33 (quotations and citation omitted). [*15]  “[I]t was that ‘central purpose’ . . . that led [the Court] to infer that the Legislature had struck a ‘public policy bargain’ when it eliminated liability for the inherent risks of skiing.” Id. Without “a similar expression . . . in the Equine Act,” the Court “resist[ed] the temptation to add language or meaning to the Act where no hint of it exist[ed] in the text.” Id. (quotations and citation omitted). Thus, the Court concluded the waiver in Penunuri did not violate public policy. The Court reached a similar conclusion in Pearce, whereby “a preinjury release between a public bobsled ride operator and an adult bobsled rider” was deemed enforceable. Pearce, 2008 UT 13, ¶ 15, 179 P.3d 760.

ii. Rothstein Analysis – Skiing Act

The distinguishing factor between Rothstein and other cases is the combination of a public policy statement and a legislative balancing of risks between operators and participants. In Rothstein, a skier “collided with a retaining wall constructed of stacked railroad ties and embedded partially in the mountain.” Rothstein, 2007 UT 96, ¶ 3, 175 P.3d 560. “At the time of the accident, a light layer of snow camouflaged the retaining wall from [the skier’s] view. . . . [T]he retaining wall was unmarked and no measures had been taken to alert skiers [*16]  to its presence.” Id. Rather, the ski resort “had placed a rope line with orange flagging near the wall,” but the rope stopped short and created “a large gap between the end of the rope and a tree.” Id. The skier thought the gap “indicated an entrance to the Fluffy Bunny run.” Id. He suffered serious injuries when he collided with the retaining wall. Id.

When analyzing Utah’s Skiing Act, the Court observed that “[s]eldom does a statute address directly the public policy relevant to the precise legal issue confronting a court.” Id. ¶ 11. It nevertheless found a clear “public policy rationale” for the Skiing Act. Id. Within that statute, the Legislature found that skiing “‘significantly contribute[es] to the economy of this state.'” Id. ¶ 12 (quoting Utah Code Ann. § 78-27-51 renumbered at
§ 78B-4-401). The Legislature also found ski operators were having difficulty obtaining insurance at an affordable rate or at all. Id. (citing Utah Code Ann. § 78-27-51). Thus, it struck a balance where operators could not be held liable “‘for injuries resulting from those inherent risks.'” Id. (quoting Utah Code Ann. § 78-27-51).

The Court therefore found the following:

The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would [*17]  be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance. By extracting a preinjury release from [the skier] for liability due to their negligent acts, [the resort] breached this public policy bargain.

Id. ¶ 16. The distinguishing factor between the balance struck in the Equine Act and the balance struck in Skiing Act was the express public policy statement that the balance was necessary due to the economic benefit to the State and the ski resort’s inability to insure itself for the inherent risks associated with skiing.

iii. Bike Racing Analysis

The facts giving rise to Finken‘s injuries are closely analogous to the facts in Rothstein. In Rothstein, a wall was unmarked and where one did not expect it to be. In this case, a barricade was unmarked on the course map and where one did not expect it to be. Neither the wall nor the barricade was within the inherent risks of the relevant sport. Although the facts are similar between the two cases, the issue before the court is whether Utah has a public policy that precludes USA
Cycling from avoiding liability for risks that are not inherent in a [*18]  bike race.

The Utah Legislature has found there are inherent risks associated with bike riding. Utah Code Ann. § 78B-4-509(1)(a), (d). For injuries arising from inherent risks of participating in bike riding, the Legislature has afforded protection to “a county, municipality, local district, . . . or special service district.” Id.
§ 78B-4-509(2)(a). It also has afforded protection to “the owner of property that is leased, rented, or otherwise made available to” the government “for the purpose of providing or operating a recreational activity.” Id.
§ 78B-4-509(2)(b). The Legislature chose not to “relieve any other person from an obligation that the person would have in the absence of this section to exercise due care.” Id.
§ 78B-4-509(3)(b). That balance is different from the Equine Act and the Skiing Act because it leaves operators of biking events without any statutory protections.

In another section of statute, the Legislature more particularly addressed bike races. It stated bike racing is permitted on a highway only if approved by the highway authority of the relevant jurisdiction. Id.
§ 41-6a-1111. The State has a significant interest in ensuring safety on its public highways. Bike racing can impact not just the participants, but spectators or those in a motor vehicle trying [*19]  to navigate the same highway. Thus, the Legislature specified before approval may be granted, conditions must exist to “assure reasonable safety for all race participants, spectators, and other highway users.” Id.
§ 41-6a-1111(2)(b).

The Utah Department of Transportation instituted regulations to carry out the intent and purpose of the statute. The Department noted one purpose of its regulation was to “[e]ncourage and support special events such as . . . bicycle races” because it “recognize[d] their importance to Utah’s economy and to the well-being of residents of and visitors to Utah.” Utah Admin. Code R920-4-1(1)(b). Nevertheless, “to further . . . governmental interests,” it implemented safety protocols to ensure “[t]he safety of all participants in, and spectators of, special events,” as well as the travelling public. Id. at R920-4-1(2)(b), (c).

One protocol requires a person or entity to obtain a special event permit before holding a bike race on a highway. Id. at R920-4-1(4)(g), (i). To obtain a special event permit, the applicant must “provide a detailed map.” Id. at R920-4-13. The applicant also must have “liability insurance,” and such insurance must list the State of Utah “as an additional insured.” Id. at R920-4-9(1);  [*20] see also id. at R920-4-6. Consistent with statute, the applicant must obtain a waiver and release of liability from participants that releases the State and governmental personnel. Id. at R920-4-9(3)-(4). Although the statutory provision bars claims against the government for inherent risks, the regulatory waiver bars all claims. Similarly, though, there is no exclusion from liability for the operator of a bike race.

Based on the Rothstein analysis and harmonization of the relevant statutes and regulations, the court concludes the Legislature and Department of Transportation allow bike races on public highways but recognize inherent risks associated with such races. Safety is paramount because a bike race can impact not only those in the race, but spectators, or motorists who have no association with it. Detailed maps and liability insurance are pre-requisites to obtaining a special event permit to help protect against risks. As the Utah Supreme Court noted in Hawkins, “one might be careless of another’s life and limb, if there is no penalty for carelessness.” Hawkins, 2001 UT 94, ¶ 14, 37 P.3d 1062 (quotations and citation omitted). Thus, the requirement for liability insurance helps ensure safety for participants, spectators, [*21]  and the travelling public.

Utah has recognized, however, that if liability insurance must cover inherent and non-inherent risks of a sport, the cost may be prohibitive and thereby hinder holding events or activities that would provide an economic benefit to the state. Hindering such economic benefits would be contrary to one of the stated purposes of the regulation. Thus, one may reasonably conclude that liability for inherent risks may be waived by the bike race participants so as not to hinder the economic benefits to the State.

The court concludes, however, if an operator is allowed to obtain a waiver from participants even for risks that are not inherent in the sport, it would alter one of the elements for a special event permit. Liability insurance is meant to cover liabilities. If all liability has been waived for bike participants, then the purpose for carrying liability insurance is altered as to those participants. Because bike races on highways are prohibited unless the reasonable safety of participants, spectators, and the travelling public may be assured, a balance was struck and cannot be altered via a waiver of liability. Accordingly, the court concludes as a matter of [*22]  public policy, the Waiver in this case is unenforceable because it attempts to waive liability even for non-inherent risks arising from or associated with the negligent acts of USA
Cycling.
2

iv. Modification of the Utah’s Skiing Act

An additional issue has arisen since briefing on the motions. From 2007 until 2020, the Rothstein balance existed between operators and skiers whereby preinjury waivers were enforceable for risks inherent in skiing, but not for unforeseen risks arising from the negligent actions of the operator. See Rothstein, 2007 UT 96, ¶¶ 16, 19, 175 P.3d 560. In 2020, the Utah Legislature altered this balance by passing legislation that allows preinjury waivers without regard to whether the risk was unforeseen. Utah Code Ann. § 78B-4-405 (2020). Moreover, claims brought on or after May 12, 2020, if not otherwise barred, have a noneconomic damages cap of $1,000,000. Id. at § 78B-4-406. The Legislature’s actions have abrogated the ruling in Rothstein and will necessarily impact future preinjury waiver analyses for other recreational activities.

The question here is whether the Legislature’s change of public policy should be applied retroactively to the analysis in this case. The United States Supreme Court has stated “the principle that the legal effect [*23]  of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994) (quotations and citation omitted). Moreover, the Due Process Clause “protects the interests in fair notice and repose that may be compromised by retroactive legislation.” Id. at 266 (citation omitted).

Here, the legislation was approved on March 28, 2020, but made effective May 12, 2020. This shows a clear intent for future application of law. Accordingly, the public policy analysis applied in Rothstein was still applicable at the time of the events in this case and informs this court’s decision.

CONCLUSION

For the reasons stated above, the court DENIES the Motions for Summary Judgment filed by USA
Cycling and Breakaway (ECF Nos. 38, 56).

DATED this 3rd day of June, 2020.

BY THE COURT:

/s/ Clark Waddoups

Clark Waddoups

United States District Judge


The one group of people who never sign a release and to whom you have no defenses are spectators. Here a spectator was injured during a bicycle race.

In this case, the plaintiff attempted to bring in USA Cycling, Inc. Spectators are always at risk, and defendants have little they can do to keep from getting sued except fencing in most cases.

Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063; 2018 NY Slip Op 33177(U)

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

Plaintiff: Steven Levine

Defendant: USA Cycling, Inc. & Kissena Cycling Club

Plaintiff Claims:

Defendant Defenses: Sponsor, now in control of event

Holding: For the defendants

Year: 2018

Summary

Plaintiff Cyclists riding inside the race course was injured when a racer struck him. The plaintiff sued the club that put on the event and USA Cycling, Inc. that sanctioned the event. USA Cycling moved for summary judgment arguing it owed no duty to the plaintiff because it had no control over and did not do anything other than sanction the race.

Facts

In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event when he collided with another cyclist who was a participant in the bike race.

As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention….

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

The defendant USA Cycling was brought into the case to possibly add money to the pot that might be available to the defendant. USA Cycling argued that because they did not own, control or have anything to do with the race other than to sponsor the race for a fee, they could not be held liable for anything that happened.

The court distilled the plaintiff’s claims and the defendant’s defenses into a single argument:

At issue in this matter, is whether defendant USA Cycling owed a duty to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.

USA Cycling argued the following:

… USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.

Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.

It USA Cycling did not owe the defendant a duty, then there was no negligence. The court defined negligence under New York law as:

To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In the absence of a duty, there is no breach and without a breach there is no liability

So, the issue is, did USA Cycling’s involvement in the race rise to the level that it owed a duty to the plaintiff.

The plaintiff argued the involvement was much more than just providing insurance for the race.

They [USA Cycling] collect some fees to compensate for sanctioning the event and provide insurance for the event.

The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.

The court found the actions of USA Cycling did not rise to the level to create a duty to the plaintiff.

USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.

The court found USA Cycling had no control over the race. This lack of control could not create a duty to the plaintiff.

This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.

So Now What?

Spectators are necessary to any event. They “pay” for the event by either just being there so advertisers can sell to them or paying to enter the facility. Although the facts in this case are slightly different, other cyclists riding, the issues are still the same. Spectators are not a group of people that the event sponsors, owners; officials can create protection from litigation.

If a spectator gets hurt, there is little available to stop their claims.

Here the news was that USA Cycling had so little involvement in the race, they were able to successfully argue they owed no duty to the plaintiff. This argument is similar in all states; however, the definition of duty in each state and the type of involvement could make this difficult in some jurisdictions.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn




If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs,


Spectators; they do not sign a release. They may not be able to assume the risk, what duty is owed to a spectator?

Organizers of a rugby tournament owed no duty to spectators at the tournament who were free to do at any time from the dangers and risks of lighting.

Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

State: Maryland, Court of Appeals for Maryland

Plaintiff: Judith Edwards Patton (wife of Donald Patton), acting in both an individual capacity and as personal representative of the estate of Donald Patton; Sophia P. Patton and Robert C. Patton (the parents of Donald Patton); Robert Carson Patton, II; and Meredith Patton (Donald’s daughter).

Defendant: United States of America Rugby Football Union, Ltd., d/b/a USA Rugby (“USA Rugby”), the Mid- Atlantic Rugby Football Union, Inc. ( “MARFU”), the Potomac Rugby Union, Inc. (“PRU”), the Potomac Society of Rugby Football Referees, Inc. (“Referees’ Society”), Kevin Eager, n2 and Steven Quigg,

Plaintiff Claims: liable in tort for the death of Donald Patton and the injuries suffered by Robert Patton. This liability, Appellants contended, was due to Defendants’/Appellees’ failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes

Defendant Defenses: No duty, Maryland Recreational Use Statute and release signed by the survivor plaintiff/rugby player

Holding:

Year: 2004

This case is a little different for this site; it concerns a rugby game. However, the instrumentality causing the injury was a lighting strike to a player and a spectator.

The plaintiff’s father and son attended a rugby match for the son to play and the father to cheer. A game commenced which the son was playing. The father was on the sidelines watching the game. During the game, a thunderstorm developed and lightning struck in the area. The rugby match was continued even though several other games in the tournament had been ended because of the weather.

Eventually, the match ended. The two plaintiffs’ then ran to some trees where they had left their belongings and took off for their car. On the way, lightning struck killing the father and severely injuring the son.

The plaintiffs were the surviving player and the relatives of the deceased. The defendants were the sponsoring organization, the local organization, the referee association and individual defendants. The plaintiff’s claimed the defendants should have:

(a) Have and implement proper policies and procedures regarding the protection of players and spectators from adverse weather conditions and lightning;

“(b) Have and implement a policy regarding the safe evacuation of players and spectators from the fields of play at its matches when lightning is present;

“(c) Safeguard the health, safety, and welfare of the players and spectators at its matches;

“(d) Terminate the rugby match and tournament when lightning is present;

“(e) Monitor and detect dangerous conditions associated with its matches; and

“(f) Train, supervise, monitor and control actions of officials prior to ensure the safety of the participants and spectators from dangerous lightning strikes.”

Several motions to dismiss were filed and the complaint was amended to defeat the motions. Eventually, the court dismissed the plaintiff’s complaint, and the appellate court stepped in after the dismissal and issued a writ of certiorari removing it from the Court of Special Appeals to the Appellate Court. The Appellate Court is the top court in Maryland, similar to the Supreme Court in other states.

A supreme court rarely issues a writ to remove a case before the intermediary appellate court has had a chance to review the case.

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

Under Maryland law, the plaintiffs have to prove one or more of the defendants were negligent. That means:

“(1) that the defendant was under a duty to protect the plaintiff from injury,

(2) that the defendant breached that duty,

(3) that the plaintiff suffered actual injury or loss, and

(4) that the loss or injury proximately resulted from the defendant’s breach of the duty

The requirements to prove negligence in Maryland are similar or identical to most other states.

The issue thought court stated was whether a legal duty was owed in this case.

As established in Maryland jurisprudence over a century ago: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.

The first and most important step in determining whether a duty exists is to asses several issues in the relationship between the plaintiff(s) and the defendant(s) to determine if a legal duty is owed.

In determining the existence of a duty, we consider, among other things: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Of these, the major test is one of foreseeability. “The foreseeability test “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.”” At the same time, a legal duty does not necessarily exist because of a moral duty.

Even if the foreseeability test is passed by the plaintiff that alone does not prove the existence of a duty.

Duty can be created by ““(1) by statute or rule; (2) by contractual or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.”

Whether a duty exists is also based on policy reasons; whether a type of behavior should be encouraged or discouraged for the benefit of all.

The plaintiffs argued that a special relationship existed between the defendants and the injured, the third way a duty is created set forth above. The plaintiff’s argued this based on their idea that a special relationship exists as spectators at sporting events.

A participant in a sporting event, by the very nature of the sport, trusts that his personal welfare will be protected by those controlling the event. Stated another way, it is reasonably foreseeable that both the player, and the player’s father, will continue to participate in the match, as []long as the match is not stopped by the governing bodies in charge. It also is reasonably foreseeable that, when matches are played in thunderstorms, there is a substantial risk of injury from lightning. And finally, it is reasonably foreseeable that a father will not abandon his son, when he sees those who have assumed responsibility for his son’s welfare placing his son in a perilous condition . . . .

Honestly, I would suspect that most spectators at most sporting events would believe the above to be true.

Here the court did not agree with the idea that a special relationship had been created or existed with spectators.

…the creation of a ‘special duty’ by virtue of a ‘special relationship’ between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party.”

The court stated that generally, for a duty to exist, there must be an element of dependence, which is lacking in this case. The court raised another case that failed to find a special duty. IN that case a woman died of hypothermia because the emergency telephone operator gave an incorrect address to the policeman looking for the woman.

..“for a “special relationship” to exist between an emergency telephone operator and a person in need of assistance, it must be shown that the telephone operator affirmatively acted to protect the decedent or a specific group of individuals like the decedent, thereby inducing specific reliance by an individual on the telephone operator’s conduct.

There must be an element of ceding self-control by the injured party to the defendant to create a duty which is lacking in the present case.

In a special relationship, one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself.

The court then looked at the risk presented by thunderstorms and found that there was less liability owed by a defendant to the risk created by lightning. The court, quoting another state court found “…risks and dangers associated with playing golf in a lightning storm are rather obvious to most adults.”

The Court concluded that “it is reasonable to infer that a reasonably prudent adult can recognize the approach of a severe thunderstorm and know that it is time to pack up the clubs and leave before the storm begins to wreak havoc.”

The court agreed with the trial court and found the defendants did not owe a duty to the plaintiffs based on their relationship and because the risks of thunderstorms were known to all.

So Now What?

Would this case have had a different outcome of the plaintiff had paid to attend the event and was at a specific location because the defendant told the spectator they paid to be at that location, or they were only allowed at a particular location?

In this case, the plaintiffs were free to leave the tournament at any time.

Spectators create a very different risk for event organizers. Do spectators at ski races understand a skier can leave the course and hit them? Do spectators at any match with a ball understand the ball always leaves the field of play and can cause injury to them?

Bicycle races are famous for spectators being allowed on the track where they commonly interfere with racers, but do they understand that they may also receive an injury by being there.

However, once the event organizer attempts to provide additional safeguards or warnings for the spectators, they may change the relationship between themselves and the spectators crating liability. You can protect the participants in the event, match or race and at the same time provide protection to spectators, but providing protection for spectators may increase your liability and in some cases increase the risk to players of the game.

Spectators for a risk manager are a difficult risk to understand and deal with.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Rugby, Maryland, Maryland Supreme Court, Maryland Court of Appeals, Special Relationship, Duty, Spectators,

 


Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

Judith Edwards Patton, Individually, and as the surViving Spouse of Donald Lee Patton, and as Personal Representative and Executor for the Estate of Donald Lee pattOn, et al. V. United States of America Rugby Football, Union, ltd. D/b/a USA Rugby, et al.

No. 113, September Term, 2003

Court of Appeals of Maryland

381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

June 10, 2004, Filed

Prior History: [***1] Appeal from the Circuit Court for Anne Arundel County pursuant to certiorari to the Court of Special Appeals. Rodney C. Warren, JUDGE.

Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339, 2004 Md. LEXIS 61 (2004)

Disposition: Affirmed.

Headnotes: Torts – Negligence – Duty – Special Relationship

An amateur rugby player and his father, who was a spectator, were struck by lightning at a rugby tournament. The player was injured and the spectator killed. Various members of the family filed suit alleging negligence against the rugby tournament organizers, the game referee, and related organizations for not taking precautions to avert the incident.

Held: The element of dependence and ceding of control by the injured party that is needed to find a “special relationship” is absent in this case. Our decision is consistent with our view of narrowly construing the “special relationship” exception so as not to impose broad liability for every group activity. The rugby player and spectator were free to leave the voluntary, amateur tournament at any time and their movements were not restricted by the tournament organizers. An amateur sporting event is a voluntary affair, and the participants are capable of leaving the field under their own volition if they feel their lives are in danger. The changing weather conditions were visible to all competent adults. The spectators and participants could have sought shelter at any time they deemed it appropriate to do so. It is unreasonable to impose a duty on the organizers of amateur outdoor events to warn spectators or adult participants of a weather condition that everyone present is fully able to observe and react to on his or her own. The approach of a thunderstorm is readily apparent to reasonably prudent adults and, therefore, it is every adult ‘s responsibility to protect himself or herself from the weather. There was no “special relationship” and, therefore, no legal duty to protect spectators and participants from the storm.

Counsel: Argued by W. David Allen of Crofton, MD. for Appellants.

Argued BY Kristine A. Crosswhite (Crosswhite, McKenna, Limbrick & Sinclair, LLP of Baltimore, MD) on brief for Appellees.

Judges: Bell, C.J., Raker, Wilner, Cathell, Harrell, Battaglia, Greene, JJ.

Opinion by Harrell, J. Bell, C.J., joins in judgment only.

Opinion by: Harrell

Opinion:

[*630] [**567] Opinion by Harrell, J.

On 17 June 2000, Robert Carson Patton, II, and his father, Donald Lee Patton, while at an amateur rugby tournament in Annapolis, were struck by lightning. Robert, a player in the tournament, was seriously injured, but survived. Donald, a spectator watching his son play, died. Robert and various other members of the Patton family filed suit in the Circuit Court for Anne Arundel County alleging negligence against the rugby tournament organizers, referee, and related organizations with regard to the episode.

Defendants filed Motions to Dismiss arguing they owed no legal duty to Robert and Donald Patton. A hearing was held and, on 10 July 2003, the Circuit Court dismissed the action. The Patton family appealed. This Court, on its own initiative and before the appeal could be decided in the Court of Special Appeals, issued a writ of certiorari to determine whether any of the defendants, under the circumstances alleged in the complaint, owed a legal duty [***2] to Robert and Donald Patton. Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339 (2004).

I.

A. The Lightning Strike

Based on Appellants’ amended complaint, we assume the [*631] truth of the following factual allegations: n1

[**568] Sometime during the early morning of 17 June 2000, Robert and Donald Patton arrived at playing fields adjacent to the Annapolis Middle School in Anne Arundel County, Maryland. Robert was to play rugby for the Norfolk Blues Rugby Club. Donald intended to support his son as a spectator. Robert and Donald, along with other participants and spectators, placed their equipment and belongings under a row of trees adjacent to the playing fields.

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

n1 See Valentine v. On Target, Inc., 353 Md. 544, 548, 727 A.2d 947, 949 (1999) (“as the result of the trial court’s granting a motion to dismiss, as opposed to the granting of summary judgment or judgment entered after trial, the Court will assume the truth of all well- pleaded facts and any reasonable inferences that can be properly drawn therefrom”) (citations omitted).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***3]

The rugby tournament was coordinated by Steven Quigg and was sanctioned by the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby, and Mid-Atlantic Rugby Football Union, Inc. Rugby matches involving over two dozen teams began at approximately 9:00 a.m. and were planned to continue throughout the day. It was a warm, muggy day. The weather forecast for Annapolis was for possible thunderstorms. At some point prior to the start of the twenty minute match between the Norfolk Blues and the Washington Rugby Football Club (“the match”), a thunderstorm passed through the area surrounding the Annapolis Middle School. At the start of the match, rain commenced; lightning could be seen and thunder could be heard proximate to the lightning flashes. By this time, the National Weather Service had issued a thunderstorm “warning” for the Annapolis area.

Kevin Eager, a member of the Potomac Society of Rugby Football Referees, Inc., was the volunteer referee for the afternoon match in which Robert Patton was a participant. Under the direction of Eager, the match continued as the rain increased in intensity, the weather conditions deteriorated, and the lighting flashed directly overhead. [***4] Other matches at [*632] the tournament ended. Robert Patton continued to play the match through the rain and lightning and his father continued to observe as a spectator until the match was stopped just prior to its normal conclusion.

Upon the termination of the match, Robert and Donald fled the playing fields to the area under the trees where they left their possessions. As they began to make their exit from under the trees to seek the safety of their car, each was struck by lightning. Donald died. Robert Patton sustained personal injuries and was hospitalized, but recovered.

B. Circuit Court Proceedings

Appellants here and Plaintiffs below are Judith Edwards Patton (wife of Donald Patton), acting in both an individual capacity and as personal representative of the estate of Donald Patton; Sophia P. Patton and Robert C. Patton (the parents of Donald Patton); Robert Carson Patton, II; and Meredith Patton (Donald’s daughter). They sued the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby (“USA Rugby”), the Mid- Atlantic Rugby Football Union, Inc. ( “MARFU”), the Potomac Rugby Union, Inc. (“PRU”), the Potomac Society of Rugby Football Referees, Inc. (“Referees’ Society”), [***5] Kevin Eager, n2 and Steven Quigg, alleging that Defendants were liable in tort for the death of Donald Patton and the injuries suffered by Robert Patton. This liability, Appellants contended, was due to Defendants’/Appellees’ failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes.

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

n2 Kevin Eager never was served with process.

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

Appellants alleged that Appellees each had a duty to, but failed to, do one or more of the following acts:

“(a) Have and implement proper policies and procedures regarding the protection [**569] of players and spectators from adverse weather conditions and lightning; [*633]

“(b) Have and implement a policy regarding the safe evacuation of players and spectators from the fields of play at its matches when lightning is present;

“(c) Safeguard the health, safety, and welfare of the players and spectators at its matches;

“(d) Terminate the rugby match and tournament when lightning is present;

“(e) Monitor and detect dangerous conditions [***6] associated with its matches; and

“(f) Train, supervise, monitor and control actions of officials prior to ensure the safety of the participants and spectators from dangerous lightning strikes.”

On 26 August 2002, the Referees’ Society filed a Motion to Dismiss all claims pending against it on the ground that the Referees’ Society owed no tort duty to Robert or Donald Patton as a matter of law. Thereafter, on 16 September 2002, USA Rugby, MARFU, and Steven Quigg filed a joint Motion to Dismiss in which they adopted the arguments of the Referees’ Society and advanced the additional argument that Maryland’s Recreational Land Use Statute, found in Maryland Code (1974, 2000 Repl. Vol., 2003 Supp.), § 5-1101, et seq. of the Natural Resources Article, conferred tort immunity on them for injuries arising from recreational use of premises, i.e., playing rugby on the Annapolis Middle School fields. n3

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

n3 PRU was not served with process at the time that USA Rugby, MARFU, and Mr. Quigg filed their Motion to Dismiss and, consequently, PRU was not included in that motion as a moving party. PRU timely filed an Answer to Appellants’ original Complaint on 15 October 2002, and thereafter, was included as a moving party on all pending defense motions.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***7]

Appellants, on 30 December 2002, filed an amended complaint. On 9 January 2003, USA Rugby, MARFU, PRU, and Mr. Quigg filed a second Motion to Dismiss, or in the alternative, for Summary Judgment. The Motion to Dismiss argued that: (1) Appellees owed the Pattons no legally cognizable tort duty as a matter of law; (2) Appellees are immune from tort liability under Maryland’s Recreational Land Use Statute; [*634] and (3) the claims of Robert were barred by waiver. On 13 January 2002, the Referees’ Society also filed a Motion to Dismiss the amended complaint.

The pending motions were heard on 5 February 2003. The Circuit Court, subsequently, issued an order granting the pending motions to dismiss and, on 17 November 2003, issued a Memorandum Opinion explaining the reasons for the dismissal.

Based on Maryland precedents and caselaw from other jurisdictions, the Circuit Court concluded that Appellees did not owe a duty of care to Robert or Donald Patton. The Circuit Court noted generally that courts in other jurisdictions have found that “landowners” or their equivalent do not have a duty to warn invitees of the risk of lightning. As regards Donald Patton, the Circuit Court stated:

“Decedent [***8] Donald Patton was a nonpaying spectator at a rugby match organized and overseen by [Appellees]. There is no indication from the record that Decedent had entrusted himself to the control and protection of [Appellees], indeed he was free to leave the tournament at any time. Additionally, there is no indication that he had lost the ability to monitor changing weather conditions and act accordingly. While [Appellants] allege the storm began near the beginning of the match, it was not until the conclusion of the game, that Decedent and plaintiff Robert Patton, attempted to escape the storm by running towards [**570] the tree line adjacent to the open field to retrieve their belongings. It was here that both were struck by lightning.

“The inherently unpredictable nature of weather and the patent dangerousness of lightning make it unreasonable to impose a duty upon [Appellees] to protect spectators from the type [of] injury that occurred here.”

As regards Robert Patton, the Circuit Court stated that “while it is arguable that [Appellees] had a greater duty to protect plaintiff Robert Patton, a player/participant from injury, they were under no duty to protect and warn him of [***9] lightening strikes and other acts of nature.” The hearing [*635] judge relied on cases from other jurisdictions involving lightning strikes on golf courses to conclude that “lightning is a universally known danger created by the elements” and, in the absence of evidence that Appellants created a greater hazard than brought about by natural causes, there is no duty to warn and protect. The Circuit Court expressly rejected as grounds for its grant of Appellees’ motions to dismiss both Maryland’s Recreational Land Use Statute, and waiver argument based on language contained in Robert Patton’s alleged execution of a USA Rugby Participant Enrollment Form. This appeal follows, therefore, from a dismissal of the amended complaint based solely on the ground that there was no legal duty owed to Robert or Donald Patton. Appellants present the following question for our consideration:

Did the trial court err, when it found that Appellees had no duty to protect Appellants from lightning injuries and granted Appellees’ motions to dismiss for failure to state a claim upon which relief can be granted?

II.

Maryland Rule 2-322(b)(2) provides for the filing of a motion to dismiss for failure to state a [***10] claim upon which relief can be granted. We have stated that:

The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted. . . . It will be affirmed if the record reveals any legally sound reason for the decision.

Valentine v. On Target, Inc., 353 Md. 544, 548-49, 727 A.2d 947, 949 (1999) (citations omitted).

III.

A.

For a plaintiff to state a prima facie claim in negligence, he or she must prove the existence of four elements by [*636] alleging facts demonstrating

“(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18, 26 (2003) (quoting Muthukumarana v. Montgomery Co., 370 Md. 447, 486, 805 A.2d 372, 395 (2002), and cases cited therein). Generally, whether there is adequate proof of the required [***11] elements to succeed in a negligence action is a question of fact to be determined by the fact-finder. The existence of a legal duty, however, is a question of law to be decided by the court. Valentine, 353 Md. at 549, 727 A.2d at 949. As established in Maryland jurisprudence over a century ago: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person [**571] owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury. . . . As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty. Bobo v. State, 346 Md. 706, 714, 697 A.2d 1371, 1375 (1997) (quoting West Virginia Cent. & P.R. v. State ex rel. Fuller, 96 Md. 652, 666, 54 A. 669, 671-72 (1903)). [***12] “Our analysis of a negligence cause of action usually begins with the question of whether a legally cognizable duty existed.” Remsburg , 376 Md. at 582, 831 A.2d at 26.

When assessing whether a tort duty may exist, we often have recourse to the definition in W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 (5th ed. 1984), which characterizes “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular [*637] standard of conduct toward another.” Id. In determining the existence of a duty, we consider, among other things: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) [***13] (citation omitted). Where the failure to exercise due care creates risks of personal injury, “the principal determinant of duty becomes foreseeability.” Jacques v. First Nat’l Bank of Maryland, 307 Md. 527, 535, 515 A.2d 756, 760 (1986) (citations omitted). The foreseeability test “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.” Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 348, 658 A.2d 675, 678 (1995) (quoting Henley v. Prince George’s County, 305 Md. 320, 333, 503 A.2d 1333, 1340 (1986)).

In determining whether a duty exists, “it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of behavior by one party to the benefit of another party.” Valentine, 353 Md. at 550, 727 A.2d at 950. “While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law.” Remsburg, 376 Md. at 583, 831 A.2d at 26. As we clarified [***14] in Ashburn: the fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a “special relationship” exists either between [*638] the actor and the third person or between the actor and the person injured. Ashburn, 306 Md. at 628, 510 A.2d at 1083 (citations omitted). In addition, “a tort [**572] duty does not always coexist with a moral duty.” Jacques, 307 Md. at 534, 515 A.2d at 759 (citing W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 56 (5th ed. 1984)). We have held that such a “special duty” to protect another may be established “(1) by statute or rule; (2) by contractural or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.” Bobo, 346 Md. at 715, 697 A.2d at 1376 (internal citations omitted).

B.

Appellants allege that a “special relationship” existed between Appellees (USA Rugby, MARFU, [***15] PRU, the Referees’ Society, and Steven Quigg) and Robert and Donald Patton sufficient to recognize the existence of a duty to protect the latter, the breach of which gave rise to an action for negligence.

Appellants argue that:

A participant in a sporting event, by the very nature of the sport, trusts that his personal welfare will be protected by those controlling the event. Stated another way, it is reasonably foreseeable that both the player, and the player’s father, will continue to participate in the match, as []long as the match is not stopped by the governing bodies in charge. It also is reasonably foreseeable that, when matches are played in thunderstorms, there is a substantial risk of injury from lightning. And finally, it is reasonably foreseeable that a father will not abandon his son, when he sees those who have assumed responsibility for his son’s welfare placing his son in a perilous condition . . . .

Appellants essentially contend that the tournament organizers had a duty to protect Robert and Donald, and to extricate them, from the dangers of playing in and viewing, respectively, a sanctioned rugby match during a thunderstorm. [*639] Appellees counter that [***16] “there is no ‘special relationship’ between Mr. Patton, Sr., Mr. Patton and the Appellees which would require the Appellees to protect and warn these individuals of the dangers associated with lightning.” Appellees argue that they “had no ability to control the activities of players or spectators at any time,” and “there is no evidence in the record that Mr. Patton, Sr. and Mr. Patton were dependent upon or relied upon the Appellees in any way, shape or form.”

We said in Remsburg that “the creation of a ‘special duty’ by virtue of a ‘special relationship’ between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party.” Remsburg, 376 Md. at 589-90, 831 A.2d at 30. We conclude that Appellants here did not establish by either of these methods a triable issue as to the existence of a “special relationship.” Id.

In Remsburg, among other issues, we focused on whether a “special relationship” was created because of an implied or indirect relationship between the parties. [***17] Id. We held that the leader of a hunting party was under no special duty to protect a property owner who was shot by a member of the leader’s hunting party. We found insufficient the relationship of dependence between the leader of the hunting party and the injured property owner. This meant there was no duty on the part of the leader to protect the property owner from being accidentally shot by a hunting party member. 376 Md. at 593, 831 A.2d at 33. In holding that the inherent nature of the relationship between the parties did not give rise to a “special relationship” and, hence, a tort duty, we again approved [**573] the traditional “special relationships” that consistently have been associated with the “special relationship” doctrine. 376 Md. at 593-94, 831 A.2d at 32-33. We adopted previously as Maryland common law § 314A of the Restatement, entitled “Special Relations Giving Rise to a Duty to Aid or Protect,” which provides that:

[*640] (1) [a] common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm . . . .

(2) An innkeeper is under a similar duty to his guests.

(3) [***18] A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstance such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Restatement (Second) of Torts § 314A (1965); see Southland Corp. v. Griffith, 332 Md. 704, 719, 633 A.2d 84, 91 (1993). Although the foregoing list is not exhaustive, our caselaw where we have found a duty arises consistently requires an element of dependence that is lacking in the present case. See, e.g., Todd v. Mass Transit Admin., 373 Md. 149, 165, 816 A.2d 930, 939 (2003) (finding that an employee of a common carrier has a legal duty to take affirmative action for the aid or protection of a passenger under attack by another passenger); Southland, 332 Md. at 720, 633 A.2d at 91 (finding that a convenience store, through its employee and by virtue of a special relationship between the business and its customers, owed a legal duty to a customer being [***19] assaulted in store parking lot to call the police for assistance when requested to do so).

As stated in Remsburg, “while we have permitted some flexibility in defining this limited exception, such as including the employer-to-employee relationship and also that of business owner-to-patron, we have been careful not to expand this class of ‘special relationships’ in such a manner as to impose broad liability for every group outing.” Remsburg, 376 Md. at 594, 831 A.2d at 33. Similarly, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002), we declined to recognize that a “special relationship” existed between two child victims of the sequelae of a domestic dispute and an emergency telephone operator. In Muthukumarana, the operator, [*641] a police services aide, received a frantic call from Ms. Muthukumarana reporting that her husband had assaulted her in their house and then run upstairs. 370 Md. at 468-70, 805 A.2d at 384-86. The police services aide talked with Ms. Muthukumarana on the phone for one minute and forty seconds until the husband returned downstairs and shot and killed the two children huddled at her side [***20] and then himself. Id. Ms. Muthukumarana sued the police services aide and her supervisors alleging that they had a tort duty of care to the decedent children and herself and that that duty was breached by, among other things, a failure to timely advise her to leave the premises. Id.

In Fried v. Archer, the companion case to Muthukumarana, we also declined to find that a “special relationship” existed between a woman who died of hypothermia due to exposure to the elements and an emergency telephone system operator who erroneously reported the location of the woman to police officers on patrol who therefore failed to discover the victim before her demise. In Fried, a communications officer employed by the Harford County Sheriff’s Office received an anonymous [**574] call n4 reporting a female laying semi- conscious in the woods behind a particular building. 370 Md. at 458, 805 A.2d at 379. The communications officer, however, provided police officers with the wrong location of the woman. 370 Md. at 460, 805 A.2d at 379. The responding officers were unable to locate the victim, who died of hypothermia. 370 Md. at 460, 805 A.2d at 380. [***21] The decedent’s mother sued the communications officer and her supervisors alleging that they had a tort duty of care to the decedent and that that duty was breached by the failure to provide the police officers with the decedent’s correct location. 370 Md. at 461, 805 A.2d at 380.

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

n4 The call, it turned out, was placed by one of the young men who caused the young woman to become unconscious and placed her in the vulnerable location outdoors on a cold, rainy night.

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

We applied the “special relationship” doctrine to the circumstances surrounding the emergency telephone operators in both cases and held that no “special relationship” existed [*642] between them and the plaintiffs. 370 Md. at 486, 805 A.2d at 395. We reasoned that for a “special relationship” to exist between an emergency telephone operator and a person in need of assistance, it must be shown that the telephone operator affirmatively acted to protect the decedent or a specific group of individuals like the decedent, thereby inducing [***22] specific reliance by an individual on the telephone operator’s conduct. 370 Md. at 496, 805 A.2d at 401.

The element of dependence and ceding of self-control by the injured party that is needed under Remsberg and Muthukumarana/Fried is absent in the present case. n5 There is no credible evidence that the two adults, Robert and Donald Patton, entrusted themselves to the control and protection of Appellees.

Accordingly, we follow our admonition in Remsburg to avoid expanding the “special relationship” exception in such a manner as to impose broad liability for every group activity. Remsburg, 376 Md. at 594, 831 A.2d at 33. Our decision here, in line with Remsberg and Muthukumarana/Fried, is consistent with our view of narrowly construing the “special relationship” exception.

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

n5 There may be a degree of dependency and ceding of control that could trigger a “special relationship” in, for example, a Little League game where children playing in the game are reliant on the adults supervising them.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***23]

Of the relevant cases from our sister states, we find Dykema v. Gus Macker Enters., Inc., 196 Mich. App. 6, 492 N.W.2d 472 (Mich. Ct. App. 1992) to be particularly persuasive in the present case. In Dykema, the Michigan Court of Appeals held that the sponsors of an outdoor basketball tournament had no duty to warn a tournament spectator of an approaching thunderstorm that ultimately caused his injury. Dykema, 492 N.W.2d at 474-75. A thunderstorm struck the area of the tournament. The plaintiff, while running for shelter, was struck by a falling tree limb and paralyzed. Dykema, 492 N.W.2d at 473.

Like Maryland, Michigan recognizes the general rule that there is no tort duty to aid or protect another in the absence [*643] of a generally recognized “special relationship.” Dykema, 492 N.W.2d at 474. The Michigan court stated that:

The rationale behind imposing a legal duty to act in these special relationships is based on the element of control. In a special relationship, one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is [***24] imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular [**575] case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself.

Id. (citations omitted). Like the situation of the plaintiff and tournament sponsors in Dykema, Appellants here cannot be said to have entrusted themselves to the control and protection of the rugby tournament organizers. Id. ( “Plaintiff was free to leave the tournament at anytime, and his movements were not restricted by Defendant.”). We do not agree that, as Appellants argue, “the participants in the tournament, in effect, cede control over their activities to those who are putting on the event.” Robert and Donald Patton were free to leave the voluntary, amateur tournament at any time and their ability to do so was not restricted in any meaningful way by the tournament organizers. An adult amateur sporting event is a voluntary affair, and the participants are capable of leaving the playing field on their [***25] own volition if they feel their lives or health are in jeopardy. The changing weather conditions in the present case presumably were observable to all competent adults. Robert and Donald Patton could have sought shelter at any time they deemed it appropriate to do so. n6

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

n6 The Dykema court continued its reasoning by assuming that, “even if [Dykema] had succeeded in establishing that a special relationship existed . . . we are unable to find precedent for imposing a duty upon an organizer of an outdoor event such as this basketball tournament to warn a spectator of approaching severe weather.” Dykema, 492 N.W.2d at 475. Citing Hames v. State, 808 S.W.2d 41, 45 (Tenn. 1991), the Michigan Court of Appeals alternatively held that, because the “approach of a thunderstorm is readily apparent to reasonably prudent people . . . it would be unreasonable to impose a duty . . . to warn . . . of a condition that the spectator is fully able to observe and react to on his own.” Id.

There is a line of cases, not dependent on analysis of whether a special relationship existed, that rely on the ability of competent adults to perceive the approach of thunderstorms and to appreciate the natural risks of lightning associated with thunderstorms to justify finding no breach of an ordinary duty of care owed to a plaintiff, whether that duty is recognized by common law, undertaken by the conduct of a defendant, or implied from the conduct of a defendant. For example, in Hames, the Supreme Court of Tennessee held that the State’s failure to provide lightning proof shelters and lightning warning devices at a State-owned golf course was not actionable in negligence. Hames, 808 S.W.2d at 45. Like Robert and Donald Patton, the golfer in Hames began to play his sport of choice on an overcast day. On the day that the golfer was struck by lightning, no signs were posted informing patrons what to do in the event of a thunderstorm and no effort was made to clear the golf course by course employees. Hames, 808 S.W.2d at 42. Approximately 25 minutes after the golfer began to play golf, a thunderstorm moved through the area. He was struck and killed by lightning while seeking cover on a small hill underneath some trees.

The plaintiff in Hames argued that the U.S. Golf Association’s Rules and Regulations created a golf course standard of care that required posting of lightning warnings and precautions. Hames, 808 S.W.2d at 43. The plaintiff’s argument in Hames is analogous to Appellants’ argument in the present case, i.e., the National Collegiate Athletic Association guidelines constitute a lightning safety standard of care for outdoor sporting events.

As well as finding no proximate cause, the Tennessee Court found that the “risks and dangers associated with playing golf in a lightning storm are rather obvious to most adults.” Hames, 808 S.W.2d at 45. The Court noted that it would have taken the decedent golfer two minutes to reach the relative safety of the clubhouse, but instead he remained on the golf course. Id. The Court concluded that “it is reasonable to infer that a reasonably prudent adult can recognize the approach of a severe thunderstorm and know that it is time to pack up the clubs and leave before the storm begins to wreak havoc.” Id. Accordingly, even though the State, as owner-operator of the golf course, owed Hames a general duty “to exercise reasonable care under all the attendant circumstances to make the premises safe . . . the defendant’s conduct did not fall below the applicable standard of care.” Hames, 808 S.W.2d at 44-46.

In Caldwell v. Let the Good Times Roll Festival, 717 So. 2d 1263, 1274 (La. Ct. App. 1998), the Louisiana Court of Appeals held that the City of Shreveport and two co-sponsors of an outdoor festival had neither a general nor specific duty to warn spectators of an approaching severe thunderstorm that caused injuries due to its high winds. The court in Caldwell observed that:

Most animals, especially we who are in the higher order, do not have to be told or warned about the vagaries of the weather, that wind and clouds may produce a rainstorm; that a rainstorm and wind and rain may suddenly escalate to become more severe and dangerous to lives and property. A thundershower may suddenly become a thunderstorm with destructive wind and lightning. A thunderstorm in progress may escalate to produce either or both tornadoes and hail, or even a rare and unexpected micro burst . . . all of which are extremely destructive to persons and property. Caldwell, 717 So. 2d at 1271. See also Seelbinder v. County of Volusia, 821 So. 2d 1095, 1097 (Fla. Dist. Ct. App. 2002) (“We begin by joining the almost universally agreed view that the County, in its capacity as “landowner” or the equivalent, did not have a duty to warn invitees, including beachgoers that there was a risk of being struck by lightning.”) (citations omitted); Grace v. City of Oklahoma City, 1997 OK CIV APP 90, 953 P.2d 69, 71 (Okla. Civ. Ct. App. 1997) (“Lightning is a universally known danger created by the elements. [The golf course owner] has no duty to warn its invitees of the patent danger of lightning or to reconstruct or alter its premises to protect against lightning[,]” and “all persons on the property are expected to assume the burden of protecting themselves from them.”); McAuliffe v. Town of New Windsor, 178 A.D.2d 905, 906, 577 N.Y.S.2d 942 (N.Y. App. Div. 1991) (upon the commencement of rain and thunder, the danger of lightning was admittedly apparent to plaintiff and there is no special duty to warn a specific swimmer against a condition that is readily observable by the reasonable use of one’s senses). The reasoning in the foregoing cases, although not explicated in terms of special relationship analysis as such, is consistent with the result reached in the present case.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***26]

[*645] [**576] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

Chief Judge Bell joins in the judgment only.